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B 

A   SELECTION   OF  CASES 


A  \  I ) 


OTHER  AUTHORITIES 

ON 

.  LABOR   LAW 


BY 

FRANCIS   BOWES   SAYRE,  LL.B.,  S.J.D. 

ASSISTANT  PROFESSOR  OF  I.AW  IN  HARVARD  UNIVERSITY 


CAMBRIIXJK 

JiAinAKi)  ^^l\l;l{^^i^   tkess 


COPYRIGHT,  1922 
HARVARD  UNIVERSITY  PRESS 


mi- 


TO  MY  BROTHER 

J.  N.  S. 

THIS  BOOK  IS  AFFECTIONATELY 
DEDICATED 


pkefacf: 

Labor  law  has  in  rccont  years  lu'en  altracliiif^  widcsjjrcad 
attention,  and  in  response  to  the  growing  demand  for  an  ade- 
quate collection  of  cases  on  the  subject  this  volume  is  ])ub- 
Hshed.  In  order  to  keep  the  book  within  reasonable  limits  it 
has  been  necessary  to  omit  ])ortions  of  the  oi)inions  in  the  ma- 
jority of  cases.  Such  omissions  are  indicated  in  the  text.  In 
practically  all  cases  the  names  and  arguments  of  coun.sel  are 
omitted;  in  a  few,  the  statement  of  facts  has  not  been  re])rinted 
where  these  sufficiently  appear  in  the  opinion.  Except  in  a  few 
cases  mistakes  in  the  original  texts  have  been  retained;  and  for 
the  most  part  tlie  gencnal  style  of  s])elling,  ca])italizati()n,  ])unc- 
tuation,  etc.,  of  the  original  re])()rts  has  been  reproduced. 

In  regard  to  the  cases  cited  in  the  footnotes  the  effort  has 
been  made  not  to  give  exhaustive  collections  of  decisions,  but 
rather  to  cite  a  few  leading  authorities  or  suggestive  decisions, 
in  the  belief  that  the  latter  will  prove  more  stimulating  and 
heli)ful  to  the  student  than  encyclopaedic  collections  of  cases. 

.\n  a])peiidix  containing  figures  on  mininuun  budgets  for 
workingmen  has  been  added  for  the  convenience  of  those  who 
are  studying  the  question  of  "the  living  wage"  as  worked  out 
in  some  of  the  decisions  appearing  in  Chapter  XIX  by  the 
Australian  Court  of  Conciliation  and  Arbitration  and  the 
Kansas  Court  of  Industrial  Relations. 

It  is  hoped  that  this  collection  of  cases  may  also  prove  useful 
as  a  source  book  to  all  those,  whether  in  the  ranks  of  emjiloyers 
or  employees,  who  are  interested  in  studying  the  develoi)ment 
and  a]:)plication  of  the  legal  principles  underlying  the  growing 
mass  of  decisions  which  make  up  the  body  of  labor  law. 

F.  H.  S. 

CAMHRiDCiE,  Mass. 
July,  1922 


(>4S362 


TABLE  OF  CONTENTS 


Introductkjn  —  KxiiLisii  Lauuji  Lk(;islatio\ 
iSection  1.  Karly  KnglLsh  Statutes  .  .  . 
Sectii)ii  2.      Nineteenth  ('enturv  ami  f^ater  Leni.ilatioii 


IS 


PART  1 

Chaitku  I.      I'^AKLY  K.N(;i,isii  Statt'Touv  Rkculations 

("haitkk  II.    Lk(;ai.itv  ok  Comdi.natkjn' 

Section  1.     RiKht  of  Ass(j(iation 

Section  2.     Law  of  Conspiracy 

A.  Criminal  Conspiracy      

B.  Civil  Conspiracy 

Section  3.     Restraint  of  Trade 

Section  4.     Legality  of  Permanent  Labor  Combinations  in  the  United 

States   

Chapter  IIL     Federal  Jurisdiction  over  Labor  Disputes.     Lvter- 

FERENCE    WITH    InTER.STATE    COMMERCE    OR    WITH    UxiTED    St.\TES 

Mails 


Chapter  IV. 

Section  L 
Section  2. 
Section  3. 
Section  4. 
Section  5. 
Section  (5. 


Legality  of  Means  used  hv  Labor  Orgaxizatio.vs 

The  Strike 

Inducing  Breach  of  Contract.    Enticement  of  Servants    .    . 

Violence,  Intimidation       

Peaceful  Persuasion 

Picketing 

Legality  of  I'nion  Action  as  .ifTected  hv  Violence  on  the 
part  of  Union  Members  


33 
37 
37 
59 
tJS 

99 


112 


147 
ir,4 
IM 
I'.tt 
200 


23; 


Chapter  V.     Legality  of  Ends  Pursued  through  Collective  .\rTioN 
BY  Labor  Organiz.\tions 
Section  1.     General  Principles      242 

A.  The  Effect  of  Motive  upon  the  Ix^gality  of  .Vets      .    .     242 

B.  Trade  Competition.     Justification      250 

Strikes  to  Secure  Higher  Wages,  Shorter  Hours,  or  Im- 
proved Working  Conditions 2G4 

Strikes  to  Secure  lncrea.sed  Ojjportunity  of  Employment  .      2(i8 
Strikes  to  Force  the  Discharge  of  Non-Union  Men  and  to 

l^nionize  Shops 275 

Trade  Agreements  for  l^nionization  of  Shops 331 

Strikes  to  Comi)el  Payment  of  Fines  Levied  against  Em- 
ployer    344 

Strikes  to  Comix'l  Payment  of  Fines  Levied  against  I'nion 

Members      3.54 

Stnk(>san(l  Other  Forms  of  Collective  Action  for  Miscel- 
laneous Pur|)o,-e->  3t)t) 


Section 

Section 
Section 

Section 
Section 

Section 

Section 


Viil  CONTENTS 

Page 

Chapter  VI.     Lockouts 390 

Chapter  VII.    Boycotts 

Section  1.    Primary  Boycott 394 

Section  2.    Secondary  Boycott  by  Means  of  Coercion      403 

Section  3.    Boycott  by  Means  of  Notice  or  Non-coercive  Persuasion. 

The  "Unfair  List' 453 

Chapter  VIIL  The  Black  List        468 

Chapter  IX.     The  Union  Label 479 

Chapter  X.       L'nion  Organizers  in  Non-Union  Fields 489 


PART  II 

Chapter  XL     Corporate  Rights,  Powers  and  Liabilities  of  Unincor- 
porated Labor  Unions 

Section  1.     Suits  By  and  Against  Unincorporated  Labor  Unions  .    .    .  517 

Section  2.     Ownership  of  Property      554 

Section  3.     LiabiHty  in  respect  to  Association  Assets      577 

Section  4.     Doctrine  of  "Ultra  Vires" 596 

Chapter  XII.     Rights  and  Liabilities  of  Members  of  Labor  Unions 
IN  Respect  to  Third  Parties 

Section  I.     Officers  and  Agents 608 

Section  2.     Members 612 

Chapter  XIII.  Trade  Agreements 644 

Chapter  XIV.  Internal  Government  of  Unions 

Section  1.  Regulation  of  Internal  Affairs      672 

Section  2.  Admission  of  Members      .    .    .    .    ^ 686 

Section  3.  Discipline  of  Members 690 

Section  4.  Expulsion  of  Members 708 


PART  III 

Chapter  XV.     Use  of  the  Injunction  against  Labor  Organi^-ations 
Section  1.     Historical   Development   of   the    Injunction    Remedy   in 

Labor  Cases 717 

Section  2.     Injunctions  against  Unnamed  Parties 734 

Section  3.     "Government  by  Injunction" 751 

Section  4.     General  Limitations  upon  the  Issue  of  Injunction.s    ....  762 

Chapter  XVI.     Pkohihition   of   Strikes   by   Injunction   or   by  the 
Criminal  Law  in  the  Light  of  the  Tiiiutkenth  Amendment 

Section  1.     The  Thirteentli  Amendment  and  Compulsory  Service    .    .  771 

Section  2.     The  Thirteenth  Amendment  and  the  Strike 782 

A.  Compelling  Individuals  to  Serve 782 

B.  Restraining  Leaders  from  Calling  a  Strike 795 


rOXTENTS  IX 

Chapter  XVII.     Rkgulatory  Lauoh  LK(ji.sLATio>f  Page 
Section  1.     (General  Prituiijlos.     Tlie  Fuiirti-ciitli  Atiiondnient  ....  800 
Section  2.     Laws  ReRulatinn  the  I-jupioyincnt  of  Women  and  Chil- 
dren    800 

Section  3.     Laws  HeKulatinf;  Employment  in  Dangerous  or  Unhealth- 

ful  Occupations 819 

Section  4.     Laws  Ucf^ulatinn  Hours  of  I^abor  in  General 826 

Section  5.     Mininiuni  Wane  Laws 837 

Section  6.     Miscellaneous    Laws    for    the    Protection   of    Industrially 

^^■cak(■r  Classes .842 

Chapter  XVIII.     K.mpujy.ment  in  a  Business  Charged  witji  a  Public 

Interk.st 862 

Chapter  XIX.     Compulsory  Ariutratio.n  and  the  I.ndu.striai.  Court 

Section  1.     Industrial  Disputes  Investigation  Act  of  Canada     ....  875 

Section  2.     The  Australian  Court  of  Conciliation  and  Arbitration    .    .  881 

Section  3.     The  South  Australian  Imlu.strial  Court      905 

Section  4.     The  Kansas  Court  of  Industrial  Relations 918 

Chapter  XX.     Work.men's  Compensation  Laws 

Section  1.     Constitutionality 954 

Section  2.     Conclusiveness  of  Findings  of  State  Commissions    ....  9t>0 

Section  3.     "In  the  Course  of  the  P^mployment" 962 

Section  4.     "Arising  out  of  the  Employment" 969 

Section  5.     Occupational  Injury 979 

Appendix     991 

Inde.x 1007 


TABLE  OF  CASES 


C'aees  are  indpxitl  under  the  naiiicit  of  both  |.-artic«.    Where  only  a  ohort  i-xtrtu-t  from 
the  oiiBe  in  Kiveii,  the  page  number  appears  in  parenthefcf«. 


'"^  Page 

Abbot  of  Lilleshall,  Case  of  412 

Abels  V.  McKeeii  .")!»»» 

Alal)aina,  Haili-v  v.  State  of  774 

Alh-n  V.  Flood   '  275 

Allis-OhaliiuTs  Co.,    Iron    Moldcrs' 

I'nion  V.  104 

AinalKainatod  Assn.  of  Stn-t't  Kail- 
way  Eini)lovfi's  ;'.  .lo|)liii  <fe 
Pittsburg  Hy.  Co.  933 

.Anialfiiuiiatod  Socii'ty  of  Ky.  Serv- 
ants r.  ( )sborno  599 
.\rMal>ianiateil  Society  of  Hy.  Serv- 
ants, TatT  \ale  Hy.Co.  r.^         527 
Amalgamated  Woodworkers'  Union, 

Karros  Kurnitiire  Co.  v.    (237),  264 
American  leakers'  Fnion,  Davitt  v.  705 
American  Steel  &  Wire  Co.  v.  Wire 
Drawers'      A:      Die      Makers' 
I'nions  737 

.American   Steel    Foundries   r.    The 
Tri-City  Central  Trades  Coun- 
cil 213 
Andenson,  Reding  v.  (546 
Angliss  «k    Co.  and   the  Australas- 
ian Meat  Industry  Employees' 
I'nion                      ■               '        890 
Anon.  (V.  B.,  24  Kdw.  Ill,  75,  99)     38 
(27  Lib.  As.s.,  l.iS,  44)  39 
(V.  H.,  50  Kdw.  III.  13,  3)              28 
(Y.  B.,  11  Hen.  IV,  23,  4ti)            154 
(V.  B.,  11  Hen.  I\  .  47,  21)            250 
Anon.  Ca.^e  427  ( 12  Mod.  248)            t)8 
Ari.ss,  Wol.stenholme  r.                        324 
Arizona  Employers'  Liability  Ca.ses  954 
Arkansas,  McLean  c.                           851 
Arnold,  Wilco.x  v.          '                       023 
Arnot  V.  Pittston  and  Elmira  Coal 

Co.  73 

Arthur,  Cuilfoil  r.  524 

Arthur  r.  Oakes  782 

Atchison,  T.  iV:  S.  F.  Hy.  Co.  r.  Cee  212 
Australasian    Meat    Industry    Em- 
ployees' Inion,  Angliss  tt  Co. 
and  890 

Australian  Boot  Trade  Employees' 

Fed.  r.  Whvl)row  &  Co.  883 


'^  Page 

Badger  lirass  Mfg.  Co.  r.  Daly  702 

Bagg's  Ca.se  42 

Bailev  ('.  State  of  Alabama  774 

Baldwin,  Hobert.^on  r.  780 

Baltimore  A:  Ohio  H.  H.  Co.  v.  In- 
terstate Commerce  Com.  (825) 
Barber  t'.  Jones  Shoe  Co.  960 
Barelay    Coal    Co.,    Morris    Coal 

Co.  V.  7t) 

Barnes  v.  Berr\-  <")53 

Barrier   Branch   of   Amal.    Miners' 
A.ssn.f.  Broken  Hill  Proprietary 
Co.  (3Coni.  Art).  Hej).  1)         (881) 
(10  Com.  Arb.  Hep.  155)  898 

Barzilaj^  v.  Locwenthal  658 

Batchelor,  Clavgate  v.  68 

Baush  Machine  Tool  Co.  v.  Hill       388 
Beekman  v.  Marsters  105 

Behan,  Vredenburg  j^.  '131 

Behanna,  O'Xeil  v.  I'.U 

Beiuiecke,  Blakely  v.  010 

Bennett,  Grassi   Contracting   Co. 

v.  (769) 

Berry,  Barnes  r.  653 

Binney,  Boston  Class  Manufac- 
tory V.  176 
Bishop,  Raggett  v.  678 
Blake  r.  Lanyon  155 
Blakely  v.  Bennecke  010 
Bohn  Nifg.  Co.  V.  Mollis  02 
Borderland  Coal  Corp.,  Gasaway  v.  509 
Bo.s.si'rt  r.  Dhuy  434 
Boston  Glass  Manufactory  r.  Bin- 
ney 1 7t> 
Bowen  i'.  Mathe.son  297 
Boyer  r.  Western  I'nion  Tel.  Co.  4()8 
Bt)Vson  ('.  Thorn  '244 
Brendel,  Mc\'cy  v.  483n 
Brennan  r.  Iriitcd  Hatters  301 
Brewers  of  London,  Tubwomen  v.  147 
Brezzenski   i'.    Crenshaw    l-ngineer- 

ing  Co.  977 

Brick-lavers",    etc.    Tnion,    Burns 

v.    '  (i«K) 

Bricklayers'  Union,  March  r.  3,">0 

lirintons,  Ltd.  r.  Turs-ey  979 


xu 


TABLE    OF    CASES 


Page 
Broken  Hill  Proprietary  Co.,  Bar- 
rier Branch  of  Amal.  JNIiners' 
Assn.  V.  (3  Com.  Arb.  Rep.  1)  (881) 
(10  Com.  Arb.  Rep.  155)  898 

Broken  Hill  Proprietary  Co.,  Fed- 
erated Engine  Drivers',  etc., 
Assn.  V.  888 

Brothers  v.  Morris  242 

Brown,  Industrial  Com.  of  Ohio  v.   983 
Brown  v.  Stoerkel  555 

Buck,  Tuttle  v.  259 

Bucks  Stove  &  Range  Co.,  Gomp- 

ers  V.  462 

Buffalo  &  Susquehanna  R.  R.  Co., 

Mclnerney  v.  963 

Building  Trades  Council,  Gray  v.     417 
Parkinson  Co.  v.  150 

Bunting  r.  Oregon  833 

Burke,  Thacker  Coal  Co.  v.  177 

Burn  V.  Natl.  Amalgamated  La- 
bourers' Union  701 
Burnham,  State  v.  52 
Burns  v.  Brick-layers,  etc..  Union  690 
Butterick  Pub.  Co.  v.  Typographi- 
cal Union  No.  6  185 
Bykerdike,  Rex  v.  48 


Carew  v.  Rutherford  344 

Case  of  Abbot  of  Lilleshall  412 

Case  of  Mary  Clark,  A  Woman  of 

Color  771 

Case  of  Phila.  Cordwainers       99  (147) 
Cater,  Cobb  v.  247 

Central  Lumber  Co.  v.  South  Da- 
kota 803 
Charles  Schweinler  Press,  People  v.  813 
Charles  Wolff  Packing  Co.,  May  v.  936 
Church,  Winona  Lumber  Co.  v.  608 
Cincinnati, etc.,  Ry.  Co.,  Hudson i'.  647 
Clark,  Case  of  Mary  771 
Claygate  v.  Batchelor  68 
Close,  Hornby  v.  80 
Cobb  V.  Cater  247 
Coeur  D'Alene  Consol.  &  Mining 

Co.  V.  Miners'  Union  726 

Cohen,  Jacobs  v.  335 

Commonwealth  v.  Hunt  104 

V.  Prius  51 

Commonwealth  Steamship  Owners' 
Assn.,  Waterside  Workers' 
J'ed.  V.  903 

Connell  v.  Stalker  696 

Connol,  Rigby  v.  83 

Copjjage  V.  Kansas  843 

Cordwainers,  Case  of  Philadelphia 

99  (147) 
Coronado   Coal   Co.,   The   United 

Mine  Workers,  v.  533 

Corrigaii,  Truax  v.  220  (759) 

Cotlier  V.  Midland  Ry.  Co.  (768) 

Cotton  Jammers,  etc.,  A.ssn.  v.  Tay- 
lor 698 


Page 

Craig,  De  Minico  r.  147 

Crenshaw   Engineering  Co.,    Brez- 

zenski  v.  977 

Gumming,  Natl.  Prot.  Assn.  v.  303 

Curran  v.  Galen  331 

D 

Daly,  Badger  Brass  Mfg.  Co.  v.  762 
"Danbury  Hatters  Case"   (Loewe 

V.  Lawlor)  121 

Davidson  v.  Joplin  &  Pittsburg  Ry. 

Co.  '  928 

Davis,  Reynolds  v.  366 

Davis  V.  Zimmerman  730 

Davitt  V.  American  Bakers'  Union  765 
Dav  V.  Studebaker  Bros.  Mfg.  Co.  349 
Debs,  In  re  138,  751 

Deering,    Duplex    Printing    Press 

Co.  V.  440 

Delaware,  Lackawanna  &  Western 

R.  R.  Co.  V.  Switchmen's  Union  795 
De  Minico  v.  Craig  147 

Dhuy,  Bos.sert  v.  434 

Diamond  Block  Coal  Co.  v.  United 

Mine  Workers  (237),  504 

Division  No.  241,  Kemp  v.  319 

DLxon,  Rex  v.  36 

Donaldson,  State  v.  299 

Doremus  v.  Hennessy  59 

Druitt,  Reg.  v.  181 

Dunlap's  Cable  News  Co.  v.  Stone  406 
Duplex  Printing  Press  Co.  v.  Deer- 
ing 440 

E 

Eagle  Glass  &  Mfg.  Co.,  Hill  v.       238 
Earl  of  Mornington,  Lord  Welles- 
ley  V.  735 
East    Haddam    Baptist    Ecclesias- 
tical   Society,    East    Haddam 
Church  V.                                     554 
East     Haddam     Central     Baptist 
Church  V.  East  Haddam  Eccle- 
siastical Soc.  554 
Eccles,  Rex  v.  34 
E.  C.  Knight  Co.,  United  States  v.   112 
Edwards,  Rex  v.  43 
Ehrlich  v.  Willenski                            612 
Electrolytic  Alkali  Co.  Ltd.,  North 

Western  Salt  Co.,  Ltd.  v.  (98) 

Equity  Rule  No.  38  527 

Erie  Railroad  Co.  v.  Williams  857 

Ex  parte  Hudgins  777 

F 

Farmers'    Loan    &    Trust    Co.    v. 

Nortliern  Pacific  R.  R.  Co.        748 
Faulkner,  Kciuley  v.  89 

Federal  iMiuity  Rule  No.  38  527 

Federated  Engine  Drivers'  &  Fire- 
men's Assn.  V.  Broken  Hill 
Projjrietary  Co.  888 


TABLE    OF   TASES 


Xlll 


Page 

Fellows  V.  Fellows  734 

First  Natl.  Hank  of  riattsmoiith  r. 


Hector 
Flood,  Allen  r. 
Forbes,  Siff  v. 


VA4 
275 
614 


(', 


Galen,  Curraii  r.  'Sil 

Gariljaldi  drove,  (Irantl  (irove  v.  712 
Garret  r.  Taylor  1S*J 

Garrinan  v.  i'nited  States  742 

Gasaway  r.  Borderland  Goal  Corp.  .')(M> 
Gee,  Atrhison,  etc,  Hy.  Go.  c.  212 

Giblan   r.    Natl.    Amai.    Lal)oiirers' 

Union  357 

Glamorgan   Goal  Go.,   Ltd.,  South 

Wales  Miners'  Federation  v.  171 
Gompers  v.  Bucks  Stove  &   KauKe 

6o.  -l*''^ 

Grand  (Jrove  v.  Garilialdi  Grove  712 
Cirand  Lod^eof  New  Jersey,  Zeliff  v.  (583 
Gras-siGontractiiiKGo.  v.  Bennett  (7t)9) 
Gray  v.  Building  Trades  Gouncil  417 
Guilfoil  V.  Arthur  524 

Guntncr,  VcRclahn  v.  200 

CJye,  Luinley  r.  157 

H 

Hall,  iluiiiaii  ;'. 

Ham  r.  Topeka  Ky.  Go. 

Hammond,  Re.\  v. 

Hardv,  Holden  r. 

Ha.skell,  Noble  State  Bank  r. 

Hayes  cl  «/.,  United  States  r. 

Hccrt,  Perkins  t;. 

Hennes.sy,  Doremus  r. 

Hess  V.  jOhn.'^on 

Hetterinan  Bros  «t  Go.  f.  Powers 

Hewitt,  Ki-K-  ''• 

Hey,  Wilson  r. 

Heywood  v.  Tillson 

Hickeringill,  Keebic  v. 

Hill,  Bau.sh  Machine  Tool  Co.  v. 

Hill  r.  Eagle  Glass  i  Mfg.  Go. 

Hillman,  Michaels  r.  (585),  ( 

Hillman,  Welinsky  v. 

Hitchiiian    Goal    &    Coke    Co.    i 

.Mitchell 
Holcoinbe,  Lavretta  r. 
Holden  v.  Hardy 
Hollis,  Bohn  Mfg.  Go.  v. 
Homan  c.  Hall 
Honora  E.  Madden's  Case 
Hopkins  r.  ().\ley  Stave  Co. 
Ilornl)erger  v.  Orchard 
Hornby  v.  Close 
Howat",  State  v. 
lludgins.  Ex  ixirtc 
Hudson  r.  Ginciimati,  etc.,  Ky.  Co. 
Hunt,  Connuonwcalth  r. 

1 
Imperial  Woolen  Co.,  McCauley  r. 
In  n-  Debs  1^^ 


169 
943 

44 
819 
800 
757 
484 

59 
t)72 
479 
355 
413 
403 
248 
388 
238 
770) 
380 

489 

5(3  1 

819 
62 
169 
972 
429 
627 
SO 
945 
777 
()47 
104 


988 
,  751 


In  re  Ix?nn(jn  790 

IndianajMjlis    Abattoir    Co.,    Rich- 
ards r.  9(i7 
Industrial  (^om.  of  Ohio  v.  Brown    983 
Interstate  Commerce  Com.,  Balti- 
more &  Ohio  K.  K.  Co.  r.          (825) 
New  Haven  H.  H.  r.                        ^69) 
Iron  Molders'  Union  v.  Allis-Chal- 

mers  Go.  194 

Iron  .Molders'  Union,  U.  S.  Heater 
Co.  .'.  522 


Jacobs  r.  Cohen  335 

James  Bagg's  Case  42 

Jetton-Dekle  Lumber  Go.  c.  Mather  (192 
John.son,  Hess  v.  672 

Johnson's  Case  981 

Jones  ('.  Maher  638 

Jones  Shoe  C'o.,  Barber  t-.  966 

Joplin  it  Pitt.sburg  Hy.  Co.,  Anial. 
A.s.sn.   of  Street    Railway   Em- 
ployees, i'.  933 
Joplin  &  Pittsburg  Ry.  Co.,  David- 
son V.  928 
Journeymen    Stonecutters'     Assn., 

Mayer  r.  ^    .       686 

Journevmen    Tailors',  etc.,   Union, 

Ot'to  ('.  .        70S 

Journeymen-Tavlors  of  Cambridge, 

Re.x  V.         '  33 

Justices,  Opinion  of  the  586 

Justices  of  Kent ,  King  v.  29 

Justices  of  Labourers,  Presentments 

made  before  the  27 

Justus,  State  v.  476 

K 
Kansas,  Coppage  v.  843 

Kansas  v.  Topeka  Edison  Co.  923 

Karges    J'urniture    Co.    v.    Anial. 
Woodworkers'  Union,      264  (237) 

89 
395 
377 
248 
207 
319 
860 
29 
985 
135 


Kealey  v.  Faulkner 

Kearney  c.  Lloyd 

Kearney,  Walton  Lunch  Co.  i'. 

Keeble  v.  Ilickeriiigill 

Keegan,  Pope  Motor  Car  Co.  v. 

Kemp  r.  Division  No.  241 

Keokee  Coke  Co.  r.  Taylor 

King  V.  Justices  of  Kent 

King  Sewing  Machine  Co.,  Naud  t 

Kirbv,  U.  S.  I'. 

Kis.sam  v.  U.  S.  Printing  Co.     338,  398 

Knight  Co.,  E.  C,  U.  S.  v.  112 

Knight's  Case  ;^ 

Knott,  Lefebvre  v.  3J0 


L 
Langmade  r.  Oleaii  Brewing  Co. 
Lanyon,  Blake  r. 
Laurie  v.  Laurie 
Lavretta  v.  Holcombe 
LawU)r  r.  Loewe  (235  I'. S.  522 1  4(>6.  (v^i. 


(•k59 
155 
767 
561 


XIV 


TABLE    OF   CASES 


Page 
Lawlor,  Loevye  v.  (208  U.  S.  274)  121 
Leathern,  Quinn  v.  286 

Le  Blanc  v.  Lemaire  564 

Lefebvre  v.  Knott  390 

Lemaire^  Le  Blanc  v.  564 

Lennon,  In  re  790 

Lilleshall,  Case  of  Abbot  of  412 

Linaker  v.  Pilcher  588 

Lindsay  &  Co.  v.  Montana  Fed.  of 

Labor  454 

Living  Wage  (Tinsmiths')  Case  (882) 
Lloyd,  Kearney  v.  395 

Local  Union  No.  60,  Schneider  v.  384 
Lochner  *.  New  York  826 

Loewe  v.  Lawlor  (208  U.  S.  274)  121 
Loewe,  Lawlor  v.  (235  U.  S.  522)  466, 636 
Loewenthal,  Barzilay  v.  658 

London  Soc.  of  Compositors,  Vacher 

&  Sons,  V.  591 

Lord  Wellesley  v.  Earl  of  Morning- 
ton  735 
Lumley  v.  Gye  157 
Lynch,  Mechanics  Foundry  &  Ma- 
chine Co.  V.                                378 


M 

McCauley  v.  Imperial  Woolen  Co.  988 
M'Gawley,  Tarleton  v.  190 

McGregor,    Gow    &    Co.,     Mogul 

Steamship  Co.  v.  252 

McGuire,  Rex  v.  879 

Mclnerney  v.  B.  &  S.  R.  R.  Co.  963 
McKeen,  Abels  v.  596 

McLaughlin  v.  Wall  567 

McLean  v.  Arkansas  851 

McNicol's  Case  969 

McVey  v.  Brendel  483/i 

Macauley  Brothers  v.  Tierney  408 

Madden's  Case  972 

Maher,  Jones  v.  638 

March  v.  Bricklayers'  Union  350 

Marshall  v.  Pilots'  Assn.  679 

Marsters,  Beekman  v.  165 

Martyn,  Nichol  v.  453 

Mary  Clark,  Ca.se  of  771 

Mather,  Jetton-Dekle  Lumber  Co. 

V.  692 

Matheson,  Bowen  v.  297 

Matter  of  Mclnerney  v.   B.   &  S. 

R.  R.  Co.  963 

May  V.  Wolff  Packing  Co.  936 

Mayer  v.  Journeymen  Stonecutters' 

Assn.  686 

Mechanics  Foundry  &  Machine  Co. 

V.  Lynch  378 

Melvin,  People  v.  102 

Michaels  v.  Hillman  (585),  (770) 

Midland  Ry.  Co.,  Cother  v.  (768) 

Mills  V.  United  States  Printing  Co.  39S 
Minasian  v.  O.sbornc  373 

Miners'     Union,     Coeur     D'Alcne 

Consfjl.  &  Mining  Co.  v.  726 


Page 
Minneapolis  Musicians'  Assn.,  Scott- 
Stafford  Opera  House  Co.  v.  381 
Minor  v.  St.  John's  Union  Grand 

Lodge  571 

Mitchell,  Hitchman  Coal  &  Coke 

Co.  V.  489 

Mitchell,  Shipwrights,  etc.,  Assn.  v.  576 
Mogul  Steamship  Co.  v.  McGregor, 

Gow  &  Co.  252 

Montana  Fed.  of  Labor,  Lindsay  & 

Co.  V.  454 

Moore  v.  Stemmons  577 

Morgan   v.    Owners   of   Steamship 

Zenaida  978 

Morrin,  O'Connor  v.  691 

Morris,  Brothers  v.  242 

Morris   Run  Coal  Co.   v.   Barclay 

Coal  Co.  76 

Muller  V.  Oregon  809 

Musgrave,  Raggett  v.  678 

Musical,  etc..  Union,  O'Brien  v.        673 

N 

National  Amal.  Labourers'  Union, 

Burn  V.  701 

National  Amal.  Labourers'  Union, 

Giblan  v.  357 

National  Protective  Assn.  v.  Gum- 
ming 303 
Naud  V.  King  Sewing  Machine  Co.  985 
Nederlandsch  Amerikaansche  Stoom- 
vaart  Maatschappij  v.   Steve- 
dores', etc.,  Society  668 
New,  Wilson  v.                                  863 
New   Haven   R.    R.   v.    Interstate 

Commerce  Com.  (769) 

New  York,  Lochner  v.  826 

New      York     Cordwainers'      Case 

(People  V.  Melvin)  102 

Nichol  V.  Martyn  453 

Noble  State  Bank  v.  Haskell  800 

North    Western    Salt    Co.    Ltd.    v. 

Electrolytic  Alkali  Co.  Ltd.      (98) 
Northern  Pacific  Rv.  Co.,  Farmers' 
Loan  &  Trust  Co.  v.  748 

o 

Oakes,  Arthur  v.  782 

O'Brien  v.  Musi('al,  etc.,  Union  673 

O'Connor  v.  Morrin  691 

O'llara,  Stottlcr  ?;.  837 

Olcan  Browing  (4).,  Langmade  v.  (559 

O'Ncil  p.  Hciianna  191 

O'Ncil,  Shin.sky  ;;.  340 
Opinion  of  the  Justices  (211  Mass. 

618)  '  586 
()rcl)ard,  IFoniberger  ?^  627 
Oregon,  liiinting  v.  833 
Muller  )'.  809 
O.sbornc,  .Amal.  Soc.  ofJRy.  Serv- 
ants V.  '  .')99 
Osborne,  Minasian  v.  373 


TABLE    OF   CARES 


XV 


Pagi- 

Otto   I'.  Journeymen    Tailors,  etc.,  i 

Union  70S 

Owners  of  Steamship  Zenaida,  Mor-  | 

gan  V.  978 

Oxley  Stave  Co.,  Hopkins  v.  429 

P 


Huikliiin  Trades 


150 
Ann 

786  (862) 
102 
813 
561 
S06 
871 
484 
724 


Parkinson  C< 

Council 
Penn.sylvania     Co.,     Toledo, 
Arbor,  etc.,  Ily.  Co.  r. 
127 
People  ('.  Molvin 

('.  Schwriiilcr  Press 
IVoplc,  W  allaci'  V. 
IV<)i)l('  r.  Williams 
Pepper,  Ho.seiiwassor  Bros,  i 
Perkins  r.  Heert 
Perkins,  Sherry  v. 
Per[)et  iial  Trustee  Co.  Ltd.,  Wise  y.  617 

I'hila.  Cordwainer's  Case          99  (147) 

Phiiiizv,  Wiiiii)V  v.  736 

Pickett  r.  Walsh  268 

I'ierce  v.  Stai)lemen's  Union    401  (424) 

Pilchor,  Linaker  v.  588 

I'ilots'  Assn.,  Marshall  v.  679 

Pine,  \'aii  Houten  c.  579 
PittstoiiiV:  i;iiiiiraCoalCo.,Arnot  r.  73 

Platit  r.  Woods  312 

Pop(>  Motor  Car  Co.  u.  Kcegan  207 

Poulterer's  Case  40 
Powers,  Ilotterman  Bros  &  Co.  v.    479 

Powers,  Ray  v.  625 

Presentment,  1576  (Court  Leet  of 

Southampton)  29 

Presentment,  1577  (Court  Leet  of 

Southampton)  29 
Presentments  made  before  the  Jus- 
tices of  Labourers,  1351  27 
Print inK  Trades  Case  905 
Prius,  Couunonwealth  v.  51 
Pywell,  Hex  v.  47 

Q 

Quinn  r.  Leathem  286 

Quinto,  Schlcsinger  v.  661 

R 
RaRgett  c.  BLshop  678 
('.  Mu.sgrave  678 
Rav  ('.  Powers  625 
Rector,  First  Xatl.  Bank  v.  644 
Reding  r.  Anderson  646 
Ilegina  v.  Druitt  181 
V.  Hewitt  355 
V.  Warburton  49 
Rex  V.  Bykerdike  48 
V,  Di.\on  36 
V.  Eccles  34 
V.  Edwards  43 
V.  Hamiuoml  44 
t'.  Journeymen-Taylors  of  Cam- 
bridge 33 


Page 

Rex  1'.  Justices  of  Kent 

29 

V.  McGuire 

879 

V.  Pywell 

47 

V.  Salter 

354 

V.  Turner 

45 

V.  Waddington 

70 

Reynolds  v.  Davis 

366 

Richards   r.    Indianai)olLS   Abattoir 

Co.  967 

Rigljy  V.  Cotmol  83 

Rilev,  Springhead  Spiiming  Co.  v.  718 

Rilev,  White  r.  327 

Robert.son  v.  Baldwin  780 

Ro.senwas.ser  Bros.  v.  Pepi>er  871 

Ruse  I'.  Williams  5ti8 

Rutherford,  Carew  v.  344 


S 

St.  John's,  etc.,  Lodge,  Minor  v.  571 
St.    Paul    Bookbinders'  I'nion,  St. 

Paul  Tvpotheta;  v.  517 

St.    Paul    Typotheta;  v.    St.    Paul 

Bookbinders'  Union  Xo.  37  517 
Salter,  Rex  v.  354 

Schlesingcr  v.  Quinto  661 

Schneider  v.  Local  Union  Xo.  »)0  384 
Schumacher  v.  Sumner  Telephone 

Co.  (616) 

Schweiider  Press,  People  r.  813 

Scott -Stafford  Opera  Hou.se  Co.  v. 

Musicians'  A.ssn.  381 

Sherrv  v.  Perkins  724 

Shin.sky  V.  O'Xeil  340 

Shipwrights,     Joiners     &     Calkers 

Assn.  V.  Mitchell  576 

SifT  V.  Forbes  014 

Silverman,  Willner  v.  472 

Sinsheimer     v.     United     Garment 

\\'orkers  460 

Slaughter-house  Cases  (842) 

Snow  V.  Wheeler  86 

Society  of  Shakers  v.  Watson  582 

South     Dakota,     Central     Lumber 

Co.  V.  803 

South  Wales  Miners'  Fed.  v.  Gla- 
morgan Coal  Co.,  Ltd.  171 
Springhoail  Spinning  Co.  v.  Riley  718 
Stablemen's  Union,  Pierce  v.  (401)  424 
Stalker,  Coimell  r.  6i)4) 
Standard  Oil  Co.,  State  v.  (97) 
State  r.  Burnham  52 
V.  Donaldson  299 
t>.  Howat  945 
V.  Justus  476 
V.  Standard  Oil  Co.  (97) 
V.  Straw  ^^  55 
State  of  Kansas  r.  To|K*ka  EdLson 

Co.  923 

Stemmons,  Moore  v.  577 

Stettler  r.  O'Hara  837 

Stevedores',    etc.,    Society,    Neder- 

landsch,  etc.  r.  '  66S 


XVI 


TABLE    OF   CASES 


Page 
Stoerkel,  Brown  r.  555 

Stone,  Dunlap's  Cable  News  Co.  v.  406 
Strauss,  Terlecki  v.  962 

Straw,  State  v.  55 

Studebaker  Bros.  Mfg.  Co.,  Day  v.  349 
Sumner  Telephone  Co.,  Schumacher 

V.  (616) 

Swift  and  Co.  v.  United  States  118  (768) 
Switchmen's  Union,   D.    L.   &   W. 

R.  R.  V.  795 

T 
Taff  Vale  Rv.  Co.  v.  Amal.  Society 

of  Rv.  Servants  527 

Tarleton  v.  M'Gawley  190 

Taylor,  Cotton  Jammers,  etc.,  Assn. 

V.  698 

Taylor,  Garret  v.  189 

Taylor,  Keokee  Coal  Co.  v.  860 

Terlecki  v.  Strauss  962 

Thacker  Coal  Co.  v.  Burke  177 

Thorn,  Boyson  v.  244 

Tiernej,  Macauley  Brothers  v.  408 
Tillson,  Heywood  v.  403 

Tinsmiths'  (Living  Wage)  Case  (882) 
Toledo,  Ann  Arbor,  etc.,  Ry.  Co.  v. 

Pennsylvania  Co.     127,  786  (862) 
Topeka  Edison  Co.,  State  of  Kan- 
sas V.  923 
Topeka  Ry.  Co.,  Ham  v.  943 
Tri-City   Central   Trades   Council, 

American  Steel  Foundries  v.      213 
Truax  v.  Corrigan  220  (759) 

Tubwomen  v.  Brewers  of  London  147 
Turner,  Rex  v.  45 

Turvey,  Brintons,  Ltd.  v.  979 

Tuttle  V.  Buck  259 

Typographical  Union  No.  6,  But- 
terick  Pub.  Co.  v.  185 

U 
United     Garment     Workers,     Sin- 

sheimer  v.  460 

United  Hatters,  Brennan  v.  361 

United  Mine  Workers  v.  Coronado 

Coal  Co.  533 

United    Mine    Workers,    Diamond 

Block  Coal  Co.  v.  (237)  504 

United  States  v.  E.  C.  Knight  Co.  112 
United  States,  Garrigun  v.  742 

United  States  v.  Hayes  et  al  757 

V.  Kirby  135 

United  States,  Swift  &  Co.  v.  118  (768) 
United  States  Heater  Co.  v.   Iron 

Molders'  Union  522 


Page 
LTnited  States  Printing  Co.,  Kissam 

V.  338, 398 

United  States  Printing  Co.,  Mills  v.  398 

V 

Vacher  &  Sons,  Ltd.  v.  London  Soc. 

of  Compositors  591 

Van  Houten  v.  Pine  579 

Vegelahn  v.  Guntner  200 

Vredenburg  v.  Behan  631 

W 

W.  Angliss  &  Co.  and  the  Austra- 
lasian Meat  Industry  Employ- 
ees' Union  890 
Waddington,  Rex  v.  70 
Wall,  McLaughlin  v.                          567 
Wallace  v.  The  People                        561 
Walsh,  Pickett  v.                                268 
Walton  Lunch  Co.  v.  Kearney           377 
Warburton,  Reg.  v.                               49 
Waterside  Workers'  Fed.  v.  Com- 
monwealth Steamship  Owners' 
Assn.                                             903 
Watson,  Society  of  Shakers  v.           582 
Welinsky  v.  Hillman                            380 
Western  Union  Tel.  Co.,  Boyer  v.    468- 
Wheeler,  Snow  v.                                  86 
White  V.  Riley                                     327 
Whybrow  &  Co.,  Australian  Boot 

Trade  Employees'  Fed.  v.         883 

Wilcox  V.  Arnold  623 

Willenski,  Ehrlich  v.  612 

Williams,  Erie  Railroad  Co.  v.  857 

People  V.  806 

Ruse  V.  568 

Willner  v.  Silverman  472 

Wilson  V.  Hey  413 

V.  New  863 

Wimpj'  V.  Phinizj'  736 

Winona  Lumber  Co.  v.  Church         608 

Wire    Drawers'     &    Die    Makers' 

Unions,   Amer.    Steel   &   Wire 

Co.  V.  737 

Wise  V.  Perpetual  Trastee  Co.,  Ltd.  617 

Wolff  Packing  Co.,  May  i^.  936 

Wolstenholme  v.  Ariss  324 

Woods,  Plant  v.  312 

Z 

Zeliff  V.  Grand  Lodge      ^  683 

Zenaida,    Owners    of    Steamship, 

Morgan  v.  978 

Zimmerman,  Davis  v.  730 


I 


TAHLK   OF   STATI'IKS 


1.    ENGLISH  STATUTES 


Ordinance  of  Conspirators,  33  Ed.  I 

(130.-)) 
Ordinance  of  Lahoiircrs,  23  I!(l.  Ill 

(134'.») 
Statute  of   Labourers,  'l^i  Kd.    HI 

(1 350-1) 
Act  of  34  Kd.  Ill  (13<)0) 
Act  of  37  Kd.  Ill  (13(i3) 
Act  of  12  Richard  II  (1388) 
Act  of  2  iV-  3  Kd.  VI,  c.  15  (1548) 
An  Act  anainst  He(i;rators,  Forestall- 

ers  and  Innro.ssers,  5  «&  6  Ed. 

VI,  c.  14  (l.-).")2) 
Act  of  5  Eliz.  c.  4  (15G2) 
Act  of  7  C:eo.  I,  Stat.  1,  c.  13  (1720) 
Act    for    Repealing    Certain    Laws 

Against   Kngro.ssers,    Forestall- 

ers  and  Regrators,  12  Geo.  Ill, 

c.  71  (1772) 
Combination    Act,    1800,    40    Ceo. 

Ill,  c.  106 
Combination  Act,  1824,  5  Ceo.  IV, 

c.  95 
Combination  Act,  1825,  6  Geo.  IV, 

c.  129 
Trade  Union   Act,   1871,  34  &  35 

Vict.  c.  31 
Criminal     Law    Amendment    Act, 

1871,  34  &  35  Vict.  c.  32 


UKC 

37 

3 

5 
7 
8 
9 
11 


68 
12 
17 


69 
18 
20 
21 
22 
22 


Con.spiracv,  and  Protect  i(jn  of  Prop- 
erty Act,  1H75,  38  &  39  Vict, 
c.  8()  23 

Trade   Disjjutes   Act,    1906,   6   lid. 

VII,  c.  47  24 

Trade  Union  Act,  1913,  2  &  3  (Jeo. 
y,  c.  30  25 

English  Picketing  Ixjgislation  2.36 

2.    AMERICAN  STATUTES 

Clayton  Act,  Act  of  Oct.  15,  1914. 
c.  .323,  .sees.  6,  20  145 

Conspiracy  Statute,  U.  S.  Crim. 
Code,  .sec.  37  58 

Court  of  Industrial  Relations  Act, 
Kansas  S.  S.  Laws  of  1920,  c. 
29  918 

Fourteenth  Amendment,  U.  S.  Con- 
stitution 800 

Obstructing  the  Mail,  U.  S.  Crim. 
Code,  sec.  201  135 

Sherman  Anti-Trust  Act,  Act  of 
July  2,  1S90,  c.  647,  sees.  1,  2,  7  112 

Thirteenth  Amendment,  U.  S.  Con- 
stitution 774 

3.    CANADIAN  STATUTE 
Industrial    Disputes    Inyestigation 
Act,  1907,6  &  7  Ed.  VII,  c.  20 
(Dom.)  875 


TEXTS   QUOTED 


Page 
Clark,  'llic  Law  of  the  Employment 

of  LalK)r  '  394 

Collyer,  Law  of  Partnership  612 

Dicey,  Law  and  Public  Opinion  in 

England  33 

Fitzherbert,  New  Natura  IJreyium  200 


Page 

Hawkins,  Pleas  of  the  Crown  42 

Martin,  Tlie  Law  of  Labor  Unions   394 
Russel,  Sir  Charles,  Speech  before 

Parnell  Commission  41 IJ 

Spence,  Ecjuitable  Jurisdiction  717 


LABOR   LAW 


t^ 


CASES  ON  LAIU)I{   LAW 

INTRODIC  TION— EX(;LISII   LAHOIt   IJICISLATIOX' 

Section  1.    Early  English  Statutes- 

Ordinance  of  Labourers,  23  Edward  III  (1349)' 

Edward  In-  the  Rnico  of  God,  &c.  to  the  reverend  father  in  Christ,  William, 
by  the  same  grace  archbishop  of  Canterbury,  primate  of  all  England,  greet- 
ing. Because  a  great  part  of  the  jxiople,  and  csj)ecially  of  workmen  and 
servants,  late  died  of  the  pestilence,  many  seeing  the  necessity  of  masters, 
and  great  scarcity  of  servants,  will  not  serve  unless  they  may  receive  exces- 
sive wages,  and  some  rather  willing  to  beg  in  idleness,  than  by  labour  to  get 
their  living;  we,  considering  the  grievous  incommodities,  which  (jf  the  lack 
especially  of  ploughmen  and  such  labourers  may  hereafter  come,  have  upon 
deliljeration  and  treaty  \\ith  the  prelates  and  the  nobles,  and  learncfl  men  \.ix^^JJ{  *i 
assisting  us,  of  their  mutual  counsel,  ordained:  .         f 

Chapter  I.    Every  person  able  in  body  under  the  age  of  sixty  years,  not  having    '  ,  / 

to  live  on,  being  required,  shall  be  bound  to  serve  him  that  doth  require  him,      '/>-*-^|    ^  '■*"• 
or  else  committed  to  the  gaol,  until  he  find  surety  to  serve.  (  i%  ♦  V-V  ^ 

That  every  man  and  woman  of  our  realm  of  England,  of  what  condition 
he  be,  free  or  bond,  able  in  body,  and  within  the  age  of  threescore  years, 
not  living  in  merchandize,  nor  exercising  any  craft,  nor  having  of  his  own 
whereof  he  may  live,  nor  proper  land,  about  whose  tillage  he  may  himself 
occup3',  and  not  serving  any  other,  if  he  in  convenient  ser\'ice  (his  Estate 
considered)  be  required  to  serve,  he  shall  be  bounden  to  serve  him  which 
so  shall  him  require.  And  take  only  the  wages,  livery,  meed,  or  salary,  which 
were  accustomed  to  Ix?  given  in  the  places  where  he  oweth  to  serve,  the  .\x. 
year  of  our  reign  of  England,  or  five  or  six  otlier  common  years  next  l)efore. 
Provided  always.  That  the  lonls  be  preferred  l)efore  other  in  their  bondmen 
or  their  lanil  tenants,  so  in  tlieir  service  to  be  retained;  so  that  nevertheless 

'  Other  English  statutes,  as  well  as  American  statutes,  dealing  with  specific 
subjects,  will  be  found  scattered  through  the  cases  under  the  appropriate  subject 
headings.    See  Table  of  Statutes,  p.  xvii.  —  Ed. 

'  The  translation  of  the  statutes  in  this  section  is  taken  from  Pickering's  edition 
of  the  Knglisii  Statutes  at  Large  (Cambridge,  17(52,  1703,  170.')).  —  Ed. 

'  For  a  -scholarly  discussion  of  the  Statutes  of  Lal)Oiircrs,  sec  B.  II.  Putnam, 
The  Enforcement  of  the  Statutes  of  Lnl)ourer3  (Columbia  University  Studies  in 
History,  Economics,  and  Puljlic  Law,  vol.  ;}2).  Sec  also,  Social  England  (edited 
by  II.  D.  Traill),  vol.  2,  pp.  i;i;3-110  (l)ibliog.,  p.  270);  W.  Cunninghani,  The 
Growth  of  English  Industry  ami  Commerce  (5th  ed.),  pp.  330-330;  Thorold 
Rogers,  Six  Centuries  of  Work  ami  Wages,  Chap.  S;  W.  J.  .Vshley,  Introduction 
to  English  Economic  History  and  Theory. 

Sixty-one  early  Yeari)ook  ca.ses  arising  under  the  Statutes  of  Lalxjurers  will  l>e 
found  digested  in  Fitzherbert's  Abridgement,  tit.  Lalnmrcrs,  fol.  88  fT. 

3 


4  ENGLISH    STATUTES  [INTROD. 

the  said  lords  shall  retain  no  more  than  be  necessary  for  them.  And  if  any 
such  man  or  woman,  being  so  required  to  serve,  will  not  the  same  do,  that 
proved  by  two  true  men  before  the  sheriff  or  the  bailiffs  of  our  sovereign  lord 
the  King,  or  the  constables  of  the  town  where  the  same  shall  happen  to  be 
done,  he  shall  anon  be  taken  by  them  or  anj^  of  them,  and  committed  to  the 
next  gaol,  there  to  remain  under  strait  keeping,  till  he  find  surety  to  serve 
in  the  form  aforesaid. 

Chapter  II.    //  a  workman  or  servant  depart  from  service  before  the  time  agreed 
upon,  he  shall  be  imprisoned. 

Item,  If  any  reaper,  mower,  or  other  workman  or  servant,  of  what  estate 
or  condition  that  he  be,  retained  in  an}^  man's  service,  do  depart  from  the 
said  service  without  reasonable  cause  or  licence,  before  the  term  agreed,  he- 
shall  have  pain  of  imprisonment.  And  that  none  under  the  same  pain  pre- 
sume to  receive  or  to  retain  any  such  in  his  service. 

Chapter  III.    The  old  wages,  and  no  more,  shall  be  given  to  servants. 

Item,  That  no  man  pa}^,  or  promise  to  pay,  any  servant  any  more  wages^. 
liveries,  meed,  or  salarj^  than  was  wont,  as  afore  is  said.  Nor  that  any  in 
other  manner  shall  deinand  or  receive  the  same,  upon  pain  of  doubling  of 
that,  that  so  shall  be  paid,  promised,  required,  or  received,  to  him  which 
thereof  shall  feel  himself  grieved,  pursuing  for  the  same.  And  if  none  such 
will  pursue,  then  the  same  to  be  applied  to  anj^  of  the  people  that  will  pursue. 
And  such  pursuit  shall  be  in  the  court  of  the  lord  of  the  place  where  such  case 
shall  happen. 

Chapter  V.    //  any  artificer  or  workman  take  more  wages  than  were  wont  to  be 
paid,  he  shall  be  committed  to  the  gaol. 

Item,  That  sadlers,  skinners,  white-tawers,  cordwainers,  taylors,  smiths, 
carpenters,  masons,  tilers,  shipwrights,  carters,  and  all  other  artificers  and 
workmen,  shall  not  take  for  their  labour  and  workmanship  above  the  same 
that  was  wont  to  be  paid  to  such  persons  the  said  twentieth  year,  and  other 
common  years  next  before,  as  afore  is  said,  in  the  place  where  they  shall 
happen  to  work.  And  if  any  man  take  more,  he  shall  be  committed  to  the 
next  gaol,  in  manner  as  afore  is  said. 

Chapter  VI.    Victimls  ,'ihall  be  sold  at  reasonable  prices. 

Item,  That  butchers,  fishmongers,  regrators,  hostelers,  brewers,  bakers, 
pulters,  and  all  other  sellers  of  all  manner  of  victual,  shall  be  bound  to  sell 
the  same  victual  for  a  reasonable  price,  having  respect  to  the  price  that  such 
victual  be  sold  at  in  the  places  adjoining,  so  that  the  same  sellers  have  mod- 
erate gains,  and  not  excessive,  reasonably  to  be  required  according  to  the 
distance  of  the  place  from  whence  the  said  victuals  be  carried.  .  .  . 

Chapter  VII.    No  person  shall  give  any  thing  to  a  beggar  that  is  able  to  labour. 

Item,  Because  that  many  valiant  beggars,  as  long  as  they  may  live  of  beg- 
ging, do  refuse  to  labour,  giving  themselves  to  idleness  and  vice,  and  some- 
time to  tlieft  and  other  abominations;  none  ui)on  the  said  pain  of  imj)rison- 
ment  shall,  uiidcr  the  colour  of  pity  or  alms,  give  any  thing  to  such,  which 
may  labf)Ur,  or  presume  to  favour  tliom  towards  tlieir  desires,  so  that  thereby 
they  may  be  comjielled  to  hiljour  (or  (licir  necessary  living.  .  .  . 


SECT.  I]  EAULV    STATUTES  5 

ChaptI':r  VIII.  He  thai  ta/uth  mure  wages  than  is  accualoniably  given,  shall 
pay  the  s-nrplunage  to  the  tt/wn  where  he  dwelleth,  towards  a  payment  Uj  the 
King  of  a  tenth  and  Jiftanth  granted  to  him. 
Subsequently  our  sdvereign  lord  the  KiiiK,  i)er(ei\inK  i>y  tlie  cornriion 
complaint,  that  his  |je<Ji)le,  for  such  excessive  stiiK;inl,  liveries,  and  i>rices, 
which  to  such  servants,  labourers,  and  workmen  were  ctjiistrainedly  paid, 
be  oppressed,  and  that  the  disine  and  (juinzirne  to  him  attaining  might  not 
Ixi  paid,  unless  remedy  were  therefore  provided:  regarding  also  the  coactions 
and  manifest  extortions,  and  that  tliere  was  no  man,  which  against  such 
offenders,  did  pursue  for  the  said  commodity  so  ordained  to  Ix?  obtained: 
wherefore  it  was  consonant,  that  that  thing  which  was  f)rdained  to  Ik?  aj)- 
plied  to  singular  uses,  seeing  that  the  same  jx;rsons  did  not,  nor  would  not, 
pursue,  should  l)e  converted  to  a  publick  and  common  [)rofit,  by  the  advice 
of  his  counsel.  Hath  ordained,  That  all  and  singular  workmen,  servants  and 
artificers,  as  well  men  as  women,  of  whatsoever  estate  or  ccnidition  they  l>e, 
taking  more  for  their  labours,  services,  and  workmanshij),  than  they  were 
wont  to  take  the  said  xx.  year,  and  other  years  aforesaid,  should  lie  a.s.sessed 
to  the  same  sum,  which  they  shall  receive  over  and  above,  with  other  sums 
as  well  for  the  time  past,  when  the  stipend,  wages,  liveries,  and  prices  were 
augmented,  as  for  the  time  then  to  come.  And  that  the  said  whole  sunj  re- 
ceived over  and  above,  should  be  levied  of  every  of  them,  and  gathered  to 
the  King's  use.  .  .  .  And  therefore  our  .said  sovereign  lord  the  King  hath 
commaniled  all  archbishops,  and  bishoi)s,  that  they  do  to  be  published  the 
premi.ses  in  all  places  of  their  dioceses,  commanding  the  curates  and  other 
subdiocesans,  that  they  compel  their  parochians  to  labour,  according  to  the 
necessity  of  the  time,  and  also  their  stijxindiary  priests  of  their  .said  dioceses, 
which  do  now  excessively  take,  and  will  not,  as  it  is  said,  serve  for  a  competent 
salary,  as  hath  been  accustomed,  upon  pain  of  suspension  and  interdiction. 
And  that  in  no  wise  ye  omit  the  .same,  as  ye  love  us  and  the  commonwealth 
of  our  realm.    Dated  the  day  and  year  aforesaid. 

Statute  of  Labourers,  25  Edward  III  (1350-1)^ 

WluTcas  lute  against  tlic  malice  of  servants,  which  were  idle,  and  not 
willing  to  serve  after  the  ix!stilence,  without  taking  excessive  wages,  it  wjis 
ordained  by  our  lord  the  King,  and  by  assent  of  the  i)relates,  earls,  barons, 
and  other  of  his  council.  That  such  manner  of  ser%'ants,  as  well  men  as  women, 
should  be  bound  to  serve,  receiving  salary  and  wages,  accustomed  in  places 
where  they  ought  to  serve  in  the  twentieth  year  of  the  reign  of  the  King 
that  now  is,  or  five  or  six  years  before;  and  that  the  same  servants  refusing 
to  serve  in  such  manner  should  be  punished  by  imprisonment  of  their  bodies, 
as  in  the  said  statute  is  more  plainly  contained;  (2)  whereu{)on  commissions 
were  made  to  divers  jK-ople  in  every  county  to  encjuire  and  punish  all  them 
which  ofTend  against  the  same.  (3)  And  now  forasmuch  as  it  is  given  the 
King  to  understand  in  this  present  parliament,  by  the  jx^tition  of  the  com- 
monalty, that  the  said  servants  having  no  regard  to  the  said  ordinance,  but 
to  their  ease  and  singular  covetis(\  do  withdraw  themselves  to  serve  great 
men  and  other,  unless  they  have  livery  and  wages  to  the  double  or  treble 
of  that  they  were  wont  to  take  the  said  twentieth  year,  and  before,  to  the 
great  damage  of  the  great  men,  and  impoverishing  of  all  the  siiitl  commonalty. 

*  Under  our  modern  reckoning,  this  Statute  of  Lalx»urers  was  pa.<vsed  in  Fol)- 
ruary,  1351.  —  Ed. 


6  ENGLISH   STATUTES  [INTROD. 

whereof  the  said  commonalty  prayeth  remedy:  (4)  wherefore  in  the  same 
parHament,  by  the  assent  of  the  said  prelates,  earls,  barons,  and  other  great 
men  of  the  same  commonalty  there  assembled,  to  refrain  the  malice  of  the 
said  servants,  be  ordained  and  established  the  things  under-written. 

Ch.\ptee  I.  The  year  and  day's  wages  of  servants  and  labourers  in  husbandry. 
First,  That  carters,  ploughmen,  drivers  of  the  plough,  shepherds,  swine- 
herds, deies,  and  all  other  servants,  shall  take  liveries  and  wages,  accus- 
tomed the  said  twentieth  year,  or  four  years  before,  so  that  in  the  comitry, 
where  wheat  was  wont  to  be  given,  they  shall  take  for  the  bushel  ten  pence, 
or  wheat  at  the  will  of  the  giver,  till  it  be  otherwise  ordained.  And  that 
they  be  allowed  to  serve  by  a  whole  year,  or  by  other  usual  terms,  and  not 
by  the  day.  And  that  none  paj^  in  the  time  of  sarcling  or  ha_y-making  but 
a  penny  the  daj'.  And  a  mower  of  meadows  for  the  acre  five  pence,  or  by 
the  day  five  pence.  And  reapers  of  corn  in  the  first  week  of  August  two 
f)ence,  and  the  second  three  pence,  and  so  till  the  end  of  August,  and  less  in 
the  country  where  less  was  wont  to  be  given,  without  meat  or  drink,  or  other 
courtesy  to  be  demanded,  given,  or  taken.  And  that  all  workmen  bring 
openly  in  their  hands  to  the  merchant  towns  their  instruments,  and  there 
shall  be  hired  in  a  common  place  and  not  privy. 

Chapter  II.  How  much  shall  be  given  for  threshing  all  sorts  of  corn  by  the 
quarter.  None  shall  depart  from  the  town  in  summer  where  he  dwelt  in 
winter. 
Item,  That  none  take  for  the  threshing  of  a  quarter  of  wheat  or  rye  over 
ii.  d.  ob.  and  the  quarter  of  barley,  beans,  pease,  and  oats,  i.  d.  ob.  i^  so 
much  were  wont  to  be  given,  and  in  the  country,  where  it  is  used  to  reap  by 
certain  sheaves,  and  to  thresh  by  certain  bushels,  they  shall  take  no  more 
nor  in  other  manner  than  was  wont  the  said  xx.  year  and  before.  And  that 
the  same  servants  be  sworn  two  times  in  the  year  before  lords,  stewards, 
bailiffs,  and  constables  of  every  town,  to  hold  and  do  these  ordinances.  And 
that  none  of  them  go  out  of  the  town,  where  he  dwelleth  in  the  winter,  to 
serve  the  summer,  if  he  may  serve  in  the  same  town,  taking  as  before  is 
said.  .  .  .  And  that  those,  which  refuse  to  make  such  oath,  or  to  perform 
that  that  they  be  sworn  to,  or  have  taken  upon  them,  shall  l>e  put  in  the 
stocks,  by  the  said  lords,  stewards,  bailiffs,  and  constables  of  the  towns  by 
three  days  or  more,  or  sent  to  the  next  gaol,  there  to  remain,  till  they  will 
justify  themselves.  And  that  stocks  be  made  in  every  town  by  such  oc- 
casion betwixt  this  and  the  feast  of  Pentecost. 

Chapter  III.    The  wages  of  several  sorts  of  artificers  and  labourers. 

Item,  That  carpenters,  masons,  and  tilers,  and  other  workmen  of  houses, 
shall  not  take  by  the  day  for  their  work,  l)ut  in  manner  as  they  were  wont, 
that  is  to  say;  A  master  carpenter,  iii.  d.  and  an  other  ii.  d.  A  master  free 
mason  iiii.d.  and  other  masons  iii.d.  and  their  servants  i.d.  ob.;  tylers  iii.  d. 
and  their  knaves  i.d.ob.,  and  other  covcrers  of  fern  and  straw  iii.  d.,and  their 
knaves  i.  d.  ob.;  plaisterers  and  other  workers  of  nuidwalls,  and  thoir  knaves, 
by  the  same  manner,  without  moat  or  drink,  s.  from  Easter  to  Saint  Michael. 
And  from  that  time  less,  according  to  the  rate  and  discretion  of  the  justices, 
which  should  be  thereto  assigned.  And  that  they  that  make  carriage  by 
land  or  by  water,  shall  take  no  more  for  such  carriage  to  be  made,  tlian  they 
were  wont  the  said  xx.  year,  and  iiii.  years  before. 


SECT.  I]  EARLY   STATUTES  7 

CHAPfER  V.    The  several  ■punishmenUi  of  persons  offending  against  this  statute. 

Item,  That  the  said  stewards,  hailifTs,  and  (•()ristahlos  of  the  said  touiis, 
be  sworn  l)efore  the  siitiie  justifies,  to  iiujuire  dihi^cntly  by  all  the  gofwl  ways 
they  may,  of  all  them  that  come  against  this  ordinance,  and  to  certify  tJie 
same  justices  of  their  names  at  all  times,  when  they  shall  come  into  the 
country  to  make  their  sessions,  so  that  the  siime  justices  in  certification  of 
the  same  stewards,  baililTs,  and  constaljles,  of  the  names  of  the  reljels,  shall 
do  them  to  be  atUichod  by  their  body,  to  be  befon;  the  said  justices,  to  answer 
of  such  contemj)ts,  so  that  they  make  fine  and  ransom  to  the  King,  in  cji.se 
they  be  attainted.  .\nd  moreover  to  be  commanded  to  prison,  there  to  re- 
main, till  they  have  found  surety,  to  serve,  and  take  and  do  their  work,  and 
to  sell  things  vendable  in  the  manner  aforesaid.  .  .  . 

Ch.\ PTfm  VII.  The  justices  shall  hold  their  sessions  four  times  a  year,  and  at 
all  times  needful.  Sercauts  which  flee  from  one  counti/  to  another  .-hfdl 
be  committed  to  prison. 

.  .  .  And  if  any  of  the  said  servants,  labourers,  or  artificers  do  flee  from 
one  county  to  another,  Ixicause  of  this  ordinance,  that  the  sheriffs  of  the 
counts  where  such  fugitive  i)ers(jns  shall  l)e  found,  shall  do  them  to  l>e  taken, 
at  the  commandment  of  the  justices  of  the  counties  from  whence  they  shall 
flee,  and  bring  them  to  the  chief  gaol  of  the  same  county,  there  to  abide  till 
the  next  sessions  of  the  same  justices.  .  .  . 

Act  of  34  Edward  IH  (1360) 

Chapter  IX.  The  stalidcs  of  23  Edw.  ?,  cap.  1,  ami  2o  Edw.  3,  stat.  /,  cap. 
1  and  2,  touching  labourers,  carpenters,  masons,  &c.  confirmed. 

Item,  It  is  accorded  in  this  present  parliament.  That  the  statute  of  labourers 
of  old  times  made,  shall  stand  in  all  points,  except  the  pecuniar  pain,  which 
from  henceforth  is  accorded,  that  the  labourers  shall  not  he  punished  by 
fine  and  ransom.  And  it  is  ii.ssented,  That  the  said  statute  shall  be  enforced 
in  punLshment  of  labourers,  in  the  fonn  following:  that  is  tf)  say,  that  the 
lords  of  towns  may  take  and  imprison  them  by  fifteen  days,  if  they  will  not 
jiLstify  themselves.  And  then  to  send  them  to  the  next  gaol,  there  to  abide 
till  they  will  justify  them,  by  the  form  of  the  statute.  And  tliat  the  siioriff, 
jaylor  nor  other  minister  sluiU  not  let  them  to  mainprise  nor  bail,  and  if  he 
do,  he  shall  pay  to  the  King  ten  pound,  and  to  the  party  an  hundred  shil- 
lings: nor  that  the  sheriff,  jailor,  nor  other  minister  shall  take  no  fee  nor 
porterage  of  prison,  nor  at  his  entering,  nor  at  his  going  out,  upon  the  same 
pain.  And  that  a.s  well  carpenters  and  masons  Ix?  comprised  of  this  ordi- 
nance, as  all  other  labourers  servants  and  artificers.  And  that  the  car()enters 
and  ma.sons  take  from  henceforth  wages  by  the  day,  and  not  by  the  week, 
nor  in  other  manner.  .Vnd  that  the  chief  masters  of  carpenters  and  ma.<f)ns 
take  four  pence  by  the  day,  and  the  other  three  })ence  or  two  i^ence  accord- 
ing as  they  be  worth.  .\nd  that  all  alliances  and  covines  of  ma.sons  and  car- 
penters, and  congregations,  chapters,  ordinances  and  oaths  l>et\\i.xt  them 
made,  shall  be  from  henceforth  void  and  wholly  annulled:  so  that  ever\- 
mason  and  cari^)enter  of  what  condition  that  he  l>e,  shall  l)e  comix>lIed  by 
his  master  to  whom  he  serveth,  to  do  ever>'  work  that  to  him  ix>rtaineth  to 
do,  or  of  free  stone,  or  of  rough  stone.  And  also  ever>'  carix'nter  in  his  de- 
gree.   But  it  shall  l)e  lawful  to  every  lord  or  other,  to  make  bargain  or  cove- 


8  ENGLISH   STATUTES  [INTROD. 

nant  of  their  work  in  gross,  with  such  labourers  and  artificers  when  please 
them,  so  that  they  perform  such  works  well  and  la\\^fully  according  to  the 
bargain  or  covenant  with  them  thereof  made. 

Chapter  X.     The  'punishment  of  labourers,  &c.  departing  from  their  service 
into  another  county. 

Item,  Labourers  and  artificers  that  absent  them  out  of  their  services  in  an- 
other town,  or  another  county,  the  party  shall  have  the  suit  before  the  jus- 
tices, and  that  the  sheriff  take  him  at  the  first  day,  as  is  contained  in  the 
statute,  if  he  be  found,  and  do  of  him  execution  as  afore  is  said,  and  if  he  re- 
turn, that  he  is  not  found,  he  shall  have  an  exigend  at  the  first  day,  and  the 
same  pursue  till  he  be  outlawed,  and  after  the  outlawrj^,  a  writ  of  the  same 
justices  shall  be  sent  to  every  sheriff  of  England,  that  the  party  will  sue  to 
take  him,  and  to  send  him  to  the  sheriff  of  the  county  where  he  is  outlawed, 
and  when  he  shall  be  there  brought,  he  shall  have  there  imprisonment,  till 
he  will  justify  himself,  and  have  made  gree  to  the  party:  and  nevertheless 
for  the  falsity  he  shall  be  burnt  in  the  forehead,  with  an  iron  made  and  formed 
to  this  letter  F.  in  token  of  falsity,  if  the  party  grieved  the  same  mil  sue. 
But  this  pain  of  burning  shall  be  put  in  respite  till  saint  Michael  next  en- 
suing, and  then  not  executed,  unless  it  be  by  the  advice  of  the  justices.  And 
the  iron  shall  abide  in  the  custody  of  the  sheriff.  And  that  the  sheriff  and 
some  bailiff  of  the  franchise  be  attending  to  the  plaintiff,  to  put  this  ordi- 
nance in  execution,  upon  the  pain  aforesaid.  And  that  no  labourer,  servant, 
nor  a,rtificer  shall  take  no  manner  of  wages  the  festival  days. 

Act  of  37  Edward  III  (1363) 

Chapter  Y\.    Handicraftsmen  shall  use  hut  one  mystery,  hut  workwomen  may 
work  as  they  did. 

Item,  It  is  ordained,  That  artificers,  handicraft  people,  hold  them  every 
one  to  one  mystery,  which  he  will  choose  bet\vixt  this  and  the  said  feast  of 
Candlemas.  And  two  of  every  craft  shall  be  chosen  to  survey,  that  none 
use  other  craft  than  the  same  which  he  hath  chosen,  and  that  justices  be 
assigned  to  enquire  by  process,  to  hear  and  determine  in  this  article,  as  is 
ordained  in  the  article  before  .said,  saving  that  the  trespassers  in  this  article 
shall  be  punished  by  imprisonment  of  half  a  year,  and  moreover  to  make 
fine  and  ransom,  according  to  the  quantity  of  the  trespass.  ... 

Chapter  VIII.    The  diet  and  apparel  of  servants. 

Item,  For  the  outragious  and  excessive  apparel  of  divers  people,  against 
their  estate  and  degree,  to  the  great  destruction  and  impoverishment  of  all 
the  land:  it  is  ordained,  That  grooms,  as  well  servants  of  lords,  as  they  of 
mysteries  and  artificers,  shall  be  served  to  eat  and  drink  once  a  day  of  flesh 
or  of  fish,  and  the  remnant  of  other  victuals,  as  of  niilk,  butter,  and  chee.se, 
and  other  such  victuals,  according  to  their  estate.  And  that  they  have  cloths 
for  their  vesture,  or  hosing,  whereof  the  whole  cloth  shall  not  exceed  two 
murks,  and  that  they  wear  no  cloth  of  higher  price,  of  their  bujang,  nor 
otherwise,  nor  nothing  of  gold  nor  of  silver  embroidered,  aimeled,  nor  of 
silk,  nor  nothing  pertaining  to  the  said  tilings.  And  their  wives,  daughters, 
and  children  of  the  same  condition  in  tlunr  clothing  and  apparel,. and  they 
shall  wear  no  veils  passing  xii.  d.  a  veil. 


SECT.  I]  EAKLV    STATITKS  9 

Chaptkr  IX.  The  apparel  of  handicraftsmen  and  yeomen,  and  of  their  wives 
and  children. 
Item,  Tliut  jM'ople  (^f  li!iij(iicnift,  iiiitl  yooiiicii,  .«li:ill  take  nor  wear  ehith 
of  an  higher  price  for  their  vesture  or  h(jsing  than  within  forty  shillings  the 
whole  cloth,  by  way  of  buying,  nor  othcrwLst;,  nor  stone,  nor  cloth  of  silk, 
nor  of  silver,  nor  girdle,  knife,  butt<^)n,  ring,  garter,  nor  owche,  ribbarul, 
chains,  nor  no  such  other  things  of  gold  nor  silver,  nor  no  manner  of  api)arcl 
embroidered,  aimeled,  nor  of  silk  by  no  way.  And  that  tlieir  wives,  daugh- 
ters, and  children,  be  of  the  same  condition  in  their  vesture  and  api)arel. 
And  that  they  wear  no  veil  of  silk,  but  only  of  yarn  made  within  the  realm, 
r  ^r  no  manner  of  furr,  nor  of  budge,  but  only  lamb,  cony,  cat,  and  fox. 

Chapteu  XII.     The  apparel  of  knights  which  have  lands  whithin  the  yearly 
V(dite  iif  tiro  hundred  marks,  and  of  knights  and  ladies  which  have  four  hun- 
dred mark  land. 
Item,  That  knights,  which  have  land  or  rent  within  the  value  of  ii.  C.  li, 
shall  take  and  wear  cloth  (;f  vi.  marks  the  whole  cloth,  for  their  vesture, 
and  of  none  higher  price.    And  that  they  wear  not  cloth  of  gold,  nor  cloths, 
mantle,  nor  gold  furred  with  miniver  nor  of  ermins,  nor  no  apparel  Ijrojdered 
of  stone,  nor  otherwise:   and  that  their  w'ives,  daughters,  and  children  be  of 
the  same  condition.    And  that  they  wear  no  turning  up  of  ermins,  nor  of 
letuses,  nor  no  manner  of  apjiiirel  of  stone,  but  only  for  their  heads.     But 
that  all  knights  and  ladies,  which  have  land  or  rent  over  the  value  of  iv.  C. 
mark  by  year,  to  the  sum  of  M.  li.  shall  wear  at  their  pleasure,  e.xcept  ermins 
and  letuses,  and  apparel  of  pearl  arid  stone,  but  only  for  their  heads. 

Ch.\pteu  XH'.  The  apparel  of  ploughmen,  and  other  of  mean  estate:  and  the 
forfeitures  of  offenders  against  this  ordinance. 
Item,  That  carters,  ploughmen,  drivers  of  the  plough,  oxherds,  cowherds, 
shepherds,  doyars,  and  all  other  keeiXTs  of  beasts,  threshers  of  corn,  and  all 
maimer  of  j)e()ple  of  the  estate  of  a  groom,  attending  to  husbandry,  and  all 
other  people,  tliat  have  not  forty  shillings  of  goods,  nor  of  chattels,  sliall  not 
take  nor  wear  any  manner  of  cloth,  but  blanket,  and  ni.s.«;et  wool  of  twelve 
pence,  and  shall  wear  the  girdles  of  linen  according  to  their  estate,  and  that 
they  come  to  eat  and  drink  in  the  manner  as  pertaineth  to  them,  and  not 
excessively.  And  it  is  ordained,  that  if  any  wear  or  do  contrary  to  any  of 
the  points  aforesaid,  that  he  .shall  forfeit  against  the  King  all  the  apparel 
that  he  hath  so  worn  against  the  form  of  this  ordinance.' 

Act  of  12  Richard  II  (1388) 

Chapter  III.  No  servani  .thall  depart  from  one  hundred  to  another,  irithout 
a  testimonial  under  the  King's  seal,  on  pain  of  being  set  in  the  stocks. 
Item,  It  is  accorded  and  assented.  That  all  the  statutes  of  artificers,  la- 
bourers, servants  and  victuallers,  made  as  well  in  the  time  of  our  soNcrcign 
lord  the  King  that  now  is,  as  in  the  time  of  iiis  noble  grandfather  (whom 
God  a.s.soil)  not  repealed,  shall  be  firmly  holden  and  kept,  and  duly  executed. 
And  that  the  said  artihcers,  labourers,  servants  ami  victuallers  Ix;  duly 

'  Other  chapters  of  this  statute  prescribe  in  detail  the  app.irel  to  lx>  worn  by 
gcntlenuMi  uiulcr  the  estate  of  kiiitjiits,  l)y  es(iuires  of  two  luuuircd  mark  iancl. 
by  nierclmnts,  citizena  and  burgesses,  by  haiulicraftsmen,  and  by  various  kinds 
of  dorks.  —  Ed. 


10  ENGLISH  STATUTES  [INTROD. 

justified  by  the  justices  of  peace  as  well  at  the  suit  of  the  King  as  of  the  party, 
according  as  the  said  statutes  require.  And  that  the  mayors,  bailiffs,  and 
stewards  of  lords,  and  constables  of  towns,  do  duly  their  offices  touching 
such  artificers,  servants,  labourers  and  victuallers.  And  that  a  pair  of  stocks 
be  in  every  town  to  justify  the  same  servants  and  labourers  as  is  ordained 
in  the  said  statutes.  And  moreover  it  is  ordained  and  assented,  That  no 
servant  nor  labourer  be  he  man  or  woman,  shall  depart  at  the  end  of  his 
term  out  of  the  hundred,  rape,  or  wapentake  where  he  is  dwelling,  to  serve 
or  dwell  elsewhere,  or  by  colour  to  go  from  thence  in  pilgrimage,  unless  he 
bring  a  letter  patent  containing  the  cause  of  his  going,  and  the  time  of  his 
return,  if  he  ought  to  return,  under  the  King's  seal.  .  .  .  And  also  if  ar.y 
servant  or  labourer  be  found  in  any  city  or  borough  or  elsewhere  coming 
from  any  place,  wandering  without  such  letter,  he  shall  be  maintenant 
taken  by  the  said  mayors,  bailiffs,  stewards  or  constables,  and  put  in  the 
stocks,  and  kept  till  he  hath  found  surety  to  return  to  his  service,  or  to  serve 
or  labour  in  the  town  from  whence  he  came,  till  he  have  such  letter  to  depart 
for  a  reasonable  cause.  .  .  . 

Chapter  IV.  The  several  penalties  for  giving  or  taking  more  wages  than  is 
limited  by  statute. 
Item,  Because  that  servants  and  labourers  will  not,  nor  by  a  long  season, 
would  serve  and  labour  ^\^thout  outragious  and  excessive  hire,  and  much 
more  than  hath  been  given  to  such  servants  and  labourers  in  any  time  past, 
so  that  for  scarcity  of  the  said  servants  and  labourers,  the  husbands  and 
landtenants  may  not  pay  their  rents,  nor  hardly  live  upon  their  lands,  to 
the  great  damage  and  loss  as  well  of  the  lords  as  all  the  commons :  also  be- 
cause that  the  [hire]  of  the  said  servants  and  labourers  have  not  been  put  in 
certainty  before  this  time:  It  is  accorded  and  assented  that  the  bailiff  for 
husbandry  shall  take  by  year  xiii.  s.  iii.  d.  and  his  clothmg  once  by  j^ear  at 
the  most.  The  master  hine  x.  s.  the  carter  x.  s.  the  shepherd  x.  s.  the  oxherd 
vi.  s.  viii.  d.  the  cowherd  vi.  s.  viii.  d.  the  swineherd  vi.  s.  a  woman  labourer 
vi.  s.  a  dey  vi.  s.  a  driver  of  the  plough  vii.  s.  at  the  most.  And  every  other 
labourer  and  servant  according  to  his  degree,  and  less  in  the  country  where 
less  was  wont  to  be  given  without  clothing,  courtesie,  or  other  reward  by 
covenant.  .  .  . 

Chapter  V.  Whosoever  serveth  in  husbandry  until  twelve  years  old,  shall 
so  continue. 
Item,  It  is  ordained  and  assented,  That  he  or  she,  which  use  to  labour  at 
the  plough  and  cart,  or  other  labour  or  service  of  husbandry,  till  they  be 
of  the  age  of  twelve  years,  that  from  thenceforth  they  shall  abide  at  the  same 
labour,  without  being  put  to  any  mystery  or  handicraft.  And  if  any  cov- 
enant or  bond  of  apprentice  be  from  henceforth  made  to  the  contrary,  the 
same  shall  be  holden  for  none. 

Chapter  VT.  No  servants  in  husbandry,  or  labourer,  shall  wear  any  sword, 
buckler,  or  dagger.  Uidawful  games  prohibited. 
Item,  It  Is  accorded  and  assented,  that  no  servant  of  husbandry,  or  labourer, 
nor  servant,  or  artificer,  nor  of  victualler,  shall  from  henceforth  bcjir  any 
buckler,  sword  nor  dagger,  upon  forfeiture  of  the  same,  but  in  the  time  of 
war  for  defence  of  the  realm  of  Engl.iiid,  and  that  by  the  surveying  of  Oic 
arrears  for  the  time  being,  or  travailing  by  the  country  with  their  master. 


SECT.  I]  EARLY   STATUTES  11 

or  in  thpir  master's  mcssaj^c,  hut  such  servants  and  labourers  shall  have 
hows  and  arrows,  and  use  the  same  the  Sundays  and  liolydays,  and  leave 
all  playing  at  teimis  or  foothall,  and  other  games  called  coits,  dice,  casting 
of  the  stone,  kails,  and  other  such  importune  games.  .  .  . 

Act  of  2  &  3  Edward  VI,  c.  15  (1548) 

CiiAi'TKit  X\'.     Tlic  bill  uj  con.'<ijirucu.s  of  nduallcr.s  and  cmftumen. 

Skction  1.  Forasmuch  as  of  late  divers  sellers  of  victuals,  not  contented 
with  moderate  and  reasoiial)le  gain,  hut  minding  to  have  and  to  take  for 
their  victuals  so  much  as  list  them,  have  conspired  and  covenanted  together 
to  sell  their  victuals  at  uru'easonahle  prices:  (2)  And  likewise  artificers, 
handicraftsmen  and  labourers  have  made  confederacies  and  j)romiscs,  and 
have  sworn  mutual  oaths  not  only  that  they  should  not  meddle  one  with 
another's  work,  and  i>erform  and  finish  that  another  hath  l^egun,  but  also 
to  constitute  and  appoint  how  much  work  they  shall  do  in  a  day,  and  what 
hours  and  times  they  shall  work,  contrary  to  the  laws  and  statutes  of  this 
realm,  and  to  the  great  hurt  and  impoverishment  of  the  King's  majesty's 
subjects:  (3)  For  reformation  thereof  it  is  ordained  and  enacted  by  the 
King  our  sovereign  lord,  the  lords  and  commons  in  this  present  parliament 
assembled,  and  In'  the  authority  of  the  same,  That  if  any  butchers,  brewers, 
bakers,  poulterers,  cooks,  costermongers  or  fruiterers,  shall  at  any  time  from 
and  after  the  first  day  of  March  next  coming,  conspire,  covenant,  promise  or 
make  any  oaths,  that  they  shall  not  sell  their  \-ictuals  but  at  certain  prices; 
(4)  or  if  any  artificers,  workmen  or  labourers  do  conspire,  covenant,  or 
promise  together,  or  make  any  oaths,  that  they  shall  not  make  or  do  their 
works  but  at  a  certain  price  or  rate,  or  shall  not  enterprize  or  take  upon 
them  to  finish  that  another  hath  l)egun,  or  shall  do  but  a  certain  work  in  a 
day,  or  shall  not  work  but  at  certain  hours  and  times,  (5)  that  then  every 
I)erson  so  conspiring,  covenanting,  swearing  or  oflfending,  l)eing  lawfully 
convict  thereof,  by  witness,  confession  or  otherwise,  shall  forfeit  for  the  first 
ofifence  ten  pounds  to  the  King's  highness;  and  if  he  have  sufficient  to  pay 
the  same,  and  do  also  pay  the  same  within  six  days  next  after  his  conviction ; 
or  else  shall  suffer  for  the  same  offence  twenty  days  imprisonment,  and  shall 
only  have  bread  and  water  for  his  sustenance:  (0)  And  for  the  second  of- 
fence shall  forfeit  twenty  pounds  to  the  King,  if  he  have  sufficient  to  pay  the 
same,  and  do  pav  the  same  within  six  days  next  after  his  con^'icti<1n.  or 
else  shall  suffer  for  the  second  offence  punishment  of  tlie  jnllory;  (7)  and  for 
the  third  offence  shall  forfeit  forty  pound  to  the  King,  if  he  have  sufficient 
to  pay  the  sj\me,  and  also  do  pay  the  same  within  sLx  days  next  after  hLs  con- 
viction, or  else  shall  sit  on  the  pillory  and  lose  one  of  his  ears,  and  also  shall 
at  all  times  after  that  be  taken  as  a  man  infamous,  and  his  sa>-ing.  dejxisitions 
or  oath  not  to  be  credited  at  any  time  in  any  matters  of  judgment. 

Section  2.  And  if  it  fortune  any  such  conspiracy,  covenant  or  promise 
to  be  had  and  made  by  any  society,  brotherhood  or  company  of  any  craft, 
mystery  or  occupation  of  the  victuallers  above  mentioned,  with  the  presence 
or  consent  of  the  more  part  of  them,  that  then  immediately  uj^on  such  act 
of  conspiracy,  covenant  or  promise  had  or  made,  over  and  besides  the  partic- 
ular punishment  before  in  this  act  appointed  for  the  offender,  their  corpora- 
tion shall  be  dissolved  to  all  intents,  constructions  and  purposes.  .  .  . 


12 


ENGLISH   STATUTES 


riNTROD. 


A  repeal   of  so 
much  of  for- 
mer statutes  as 
concerns  the 
hiring,  keep- 
ing, depart- 
ing, working 
or  order  of 
servants,  la- 
bourers, &c. 
And  a  decla- 
ration who 
shall  be  compel- 
lable to  serve  in 
handicrafts 
and  who  in 
husbandry,  and 
their  several 
duties,  &c. 


No  person  shall 
retain  a  servant 
in  these  sciences 
under  one  whole 
year. 


What  sort  of 
pers.'ins  are 
compellable  to 
serve  in  any 
of  the  crafts 
aforesaid. 


Act  of  5  Elizabeth,  c.  4  (1562)  i 

Section  1.  Although  there  remain  and  stand  in  force  presently  a  great 
number  of  acts  and  statutes  concerning  the  retaining,  departing,  wages 
and  orders  of  apprentices,  servants  and  labourers,  as  well  in  husbandrj^  as 
in  divers  other  arts,  mysteries  and  occupations;  (2)  yet  partly  for  the  im- 
perfection and  contrariety  that  is  found,  and  doth  appear  in  sundry  of  the 
said  laws,  and  for  the  variety  and  number  of  them,  (3)  and  chiefly  for  that 
the  wages  and  allowances  limited  and  rated  in  many  of  the  said  statutes, 
are  in  divers  places  too  small  and  not  answerable  to  this  time,  respecting 
the  advancement  of  prices  of  all  things  belonging  to  the  said  servants  and 
labourers;  (4)  the  said  laws  cannot  conveniently,  without  the  great  grief 
and  burden  of  the  poor  labourer  and  hired  man,  be  put  in  good  and  due 
execution:  (5)  and  as  the  said  several  acts  and  statutes  were,  at  the  time 
of  the  making  of  them,  thought  to  be  very  good  and  beneficial  for  the  com- 
monwealth of  this  realm  (as  divers  of  them  are:)  so  if  the  substance  of  as 
many  of  the  said  laws  as  are  meet  to  be  continued,  shall  be  digested  and 
reduced  into  one  sole  law  and  statute,  and  in  the  same  an  uniform  order  pre- 
scribed and  limited  concerning  the  wages  and  other  orders  for  apprentices, 
servants  and  labourers,  there  is  good  hope  that  it  will  come  to  pass,  that  the 
same  law  (being  duly  executed)  should  banish  idleness,  advance  husbandry, 
and  j'ield  unto  the  hired  person,  both  in  the  time  of  scarcity,  and  in  the  time 
of  plent\',  a  convenient  proportion  of  wages. 

Section  2.  Be  it  therefore  enacted  by  the  authority  of  this  present  par- 
liament. That  as  much  of  all  the  estatutes  heretofore  made,  and  every  branch 
of  them,  as  touch  or  concern  the  hiring,  keeping,  departing,  working,  wages, 
or  order  of  servants,  workmen,  artificers,  apprentices  and  labourers,  or  any 
of  them,  and  the  penalties  and  forfeitures  concerning  the  same,  shall  be 
from  and  after  the  last  day  of  September  next  ensuing,  repealed  and  utterly 
void  and  of  none  effect;  (2)  and  that  all  the  said  statutes,  and  every  branch 
thereof,  or  any  matter  contained  in  them,  and  not  repealed  by  this  statute, 
shall  remain  and  be  in  full  force  and  effect;  any  thing  in  this  statute  to  the 
contrary  notwithstanding. 

Section  3.  And  l:>e  it  further  enacted  by  the  authority  aforesaid,  That 
no  manner  of  person  or  persons,  after  the  aforesaid  last  day  of  September 
now  next  ensuing,  shall  retain,  hire  or  take  into  service,  or  cause  to  be  re- 
tained, hired  or  taken  into  service,  nor  any  person  shall  be  retained,  hired 
or  taken  into  service,  by  any  means  or  colour,  to  work  for  any  less  time  or 
term  than  for  one  whole  year,  in  any  of  the  sciences,  crafts,  mysteries  or 
arts  of  clothiers,  woolen  cloth  weavers,  tuckers,  fullers,  clothworkers,  shere- 
men,  dyers,  hosiers,  taylors,  shoemakers,  tanners,  pewtcrers,  bakers,  brewers, 
glovers,  cutlers,  smiths,  farriers,  curriers,  sadlers,  spurriers,  turners,  cappers, 
hatmakers  or  feltmakers,  bow>'ers,  fletchers,  arrow-head-makers,  butchers, 
cooks  or  millers. 

Section  4.  And  be  it  further  enacted.  That  every  person  being  unmarried ; 
(2)  and  every  other  person  being  under  the  age  f)f  thirty  years,  that  after 
the  feast  of  Easter  next  shall  marrj',  (3)  and  having  been  brought  up  in  any 
of  the  said  arts,  crafts  or  sciences;  (4)  or  that  hath  used  or  exercised  any  of 
them  by  the  space  of  three  years  or  more;  (5)  and  not  having  lands,  tene- 
ments, rents  or  hereditaments,  copyhold  or  freehold,  of  an  estate  of  inheri- 

'  The  Act  of  5  Eliz.  c.  4  remained  in  force  practically  for  a  long  period  of  time, 
and  was  not  formally  rep)ealed  until  1875. 


SECT.  I]  EARLY   STATUTES  13 

tance,  or  for  term  of  any  lifo  or  lives,  of  the  clear  yearly  value  of  forty  shU- 
lings;  (G)  nor  bciri^  worth  of  his  own  goods  tlie  clear  value  of  ten  |>ound; 
(7)  and  so  allowed  hy  two  justices  of  the  jK'ace  of  the  county  where  he  hath 
most  coinin<tiily  inhabited  hy  the  space  of  one  whole  year,  and  under  their 
hands  and  seals,  (S)  or  hy  the  mayor  or  otlier  head  oflicer  of  the  city,  borough 
or  town  corporate  where  such  jxTVion  hath  most  commonly  dwelt  by  the 
space  of  one  whole  year,  and  two  aldermen,  (jr  two  other  discreet  burgesses 
of  the  same  city,  borough  or  town  corporate,  if  there  I'e  no  aldermen,  under 
their  hands  and  seals;  (!))  nor  being  retained  with  any  person  in  husbandry, 
or  in  any  of  the  aforesaid  arts  and  sciences,  according  to  this  stattite;  (10)  nor 
lawfully  retained  in  any  other  art  or  science;  (11)  nor  Ix-ing  lawfully  re- 
tained in  houshold,  or  in  any  ofTice,  \\'ith  any  nobleman,  gentleman  or  others, 
according  to  tlio  laws  of  this  realm;  (12)  nor  have  a  cftnvenient  farm,  or 
other  holding  in  tillage,  whercup(»n  he  may  employ  his  labour:  (13)  shall, 
during  the  time  tiiat  he  or  they  shall  be  so  unmarried,  or  under  the  said  age 
of  thirty  years,  upon  request  made  by  any  person  using  the  art  or  mystery 
wherein  the  said  person  so  recjuircd  hath  been  exercised  (as  is  aforesaid)  ])e 
retained;  (14)  and  shall  not  refuse  to  serve  according  to  the  tenor  of  this 
statute,  ujwn  the  pain  and  penalty  hereafter  mentioned. 

Se(TI()N  o.   And  be  it  further  enacted,  That  no  person  which  shall  re-  No  person  shall 
tain  any  servant,  shall  put  away  his  or  her  said  servant,  (2)  and  that  no  put  away  hb 
person  retained  according  to  this  statute,  shall  depart  from  his  master,  mis-  ^J^,""!,' """^  . 
tress  or  dame,  before  the  end  of  his  or  her  term ;   (3)  upon  the  pain  hereafter  ^nt  depart 
mentioned;   (4)  unless  it  be  for  some  reasonaljle  and  sufficient  cause  or  mat-  from  his  ma*- 
ter  to  be  allowed  before  two  justices  of  peace,  or  one  at  the  least,  within  the  *«■■  before  the 
said  county,  or  before  the  mayor  or  other  chief  officer  of  the  city.  ...  ^"'^  °'  ^^  ^""*- 

Section  7.   And  be  it  further  enacted  by  the  authority  aforesaid,  Tliat  what  sort  of 
every  person  between  the  age  of  twelve  years  and  the  age  of  sixty  years,  not  persons  are 
being  lawfullv  retained,  nor  apprentice  with  anv  fisherman  or  mariner  haunt-   •'°"'P^""bie 

,  '  /  -,N  1     •        •  •  -1  ■  1  •  1  I  •  f  to  serve  bv  the 

mg  the  sea,s;  (2)  nor  bemg  m  service  with  any  kuider  or  earner  ot  any  corn,  year  in  hus- 
grain  or  meal,  for  proxnsion  of  the  city  of  Ix)ndon;  (3)  nor  with  any  husband-  bandr>'. 
man  in  husl)aiulry;  (4)  nor  in  any  city,  iovn\  corporate  or  market-town,  in 
any  of  the  arts  or  sciences  limited  or  appointed  by  this  estatutc  to  have  or 
take  apprentices;  (5)  nor  being  retained  by  the  year,  or  half  the  year  at  the 
least,  for  the  digging,  seeking,  finding,  getting,  melting,  fining,  working, 
trying,  making  of  any  silver,  tin,  lead,  iron,  copper,  stone,  sea-coal,  stone- 
coal,  moor-coal  or  cherk-coal;  ((i)  nor  being  occupied  in  or  about  the  making 
of  any  glass;  (7)  nor  being  a  gentleman  born,  nor  being  a  student  or  scholar 
in  any  of  the  universities,  or  in  any  school;  (S)  nor  having  lands,  tenements, 
rents  or  hereditaments,  for  term  of  life,  or  of  one  estate  of  inheritance,  of  the 
clear  yearly  value  of  forty  shillings;  (9)  nor  Ix^ing  worth  in  goods  and  chat- 
tels to  the  value  of  ten  pound;  (10)  nor  having  a  father  or  mother  then 
living,  or  other  ancestor  whose  heir  apparent  he  is,  then  having  lands,  tene- 
ments or  hereditaments,  of  the  yearly  value  of  ten  pound  or  above,  or  goods 
or  chattels  of  the  value  of  forty  jMumd;  (11)  nor  Ix^ing  a  necessary'  or  con- 
venient officer  or  servant  lawfully  retained,  as  is  aforesaid;  (12)  nor  ha\-ing 
a  convenient  farm  or  holding,  whereupon  he  may  or  shall  imploy  his  labour; 
(13)  nor  IwMng  otherwis(>  lawfully  retained,  according  to  the  true  meaning 
of  this  estatute;  (14)  shall  after  the  aforesaid  last  day  of  8epteml>er  now 
next  ensuing,  by  \nrtue  of  this  estatute,  be  comix^lled  to  Ik?  retained  to  serw 
in  husbandry  by  the. year,  with  any  person  that  keei)eth  husliandry,  and 
will  require  any  such  person  so  to  serve,  within  the  siime  shire  where  1  e 
shall  be  so  required. 


14 


ENGLISH   STATUTES 


[INTROD. 


The  punish- 
ment of  a  serv- 
ant which 
performeth 
not  his  duty 
in  service  or 
departure. 


None  may  de- 
part forth  of 
the  city,  town, 
parish,  &c. 
without  a  tes- 
timoniaL 


How  long  la- 
bourers ehall 
continue  at 
their  work. 


Section  9.   And  if  any  servant  retained  according  to  the  form  of  this 
estatute,  depart  from  his  master,  mistress  or  dame's  ser\dce,  before  the  end 
of  his  term,  unless  it  be  for  some  reasonable  and  sufficient  cause  to  be  al- 
lowed, as  is  aforesaid;    (2)  or  if  any  servant  at  the  end  of  his  term  depart 
from  his  said  master,  mistress  or  dame's  service  without  one  quarter's  warn- 
ing given  before  the  end  of  his  said  term,  in  form  aforesaid,  and  before  two 
lawful  witnesses;    (3)  or  if  any  person  or  persons  compellable  and  bounden 
to  be  retained,  and  to  serve  in  husbandry,  or  in  any  other  the  arts,  sciences 
or  mysteries  above  remembred,  by  the  year  or  otherwise,  do  (upon  request 
made)  refuse  to  serve  for  the  wages  that  shall  be  limited,  rated  and  appointed, 
according  to  the  form  of  this  statute;    (4)  or  promise  or  covenant  to  serv'e, 
and  do  not  serve  according  to  the  tenor  of  the  same:    (5)  that  then  every 
servant  so  departing  away,  and  every  person  so  refusing  to  serve  for  such 
wages,  upon  complaint  thereof  made  by  the  master,  mistress  or  dame  of  the 
said  servant,  or  by  the  party  to  or  with  whom  the  said  refusal  is  made,  or 
promise  not  kept,  to  two  justices  of  peace  of  the  county,  or  to  the  mayor  or 
other  head  officer  of  the  city,  barough  or  town  corporate,  and  two  aldermen, 
or  two  other  discreet  burgesses  of  the  same  city,  borough  or  towii  corporate, 
if  there  be  no  aldermen,  .  .  .  the  said  justices,  .  .  .  and  also  the  said  may- 
ors or  other  head  officers,  and  other  persons  of  cities,  boroughs  or  towiis 
corporate,  or  an.y  of  them,  as  is  aforesaid,  shall  have  power  by  force  of  this 
statute,  to  hear  and  examine  the  matter;    (6)  and  finding  the  said  servant, 
or  the  said  party  so  refusing  faulty  in  the  premisses,  upon  such  proofs  and 
good  matter  as  to  their  discretions  shall  be  thought  sufficient,  to  commit  him 
or  them  to  ward,  there  to  re;nain  without  bail  or  mainprise,  until  the  said 
servant  or  party  so  offending  shall  be  bound  to  the  party  to  whom  the  of- 
fence shall  be  made,  to  serve  and  continue  with  him  for  the  wages  that  then 
shall  be  limited  and  appointed,  according  to  the  tenor  and  form  of  tliis 
estatute.  .  .  . 

Section  10.  And  be  it  likewise  enacted  by  the  authority  aforesaid.  That 
none  of  the  said  retained  persons  in  husbandry,  or  in  any  the  arts  or  sciences 
above  remembred,  after  the  time  of  his  retainer  exjnred,  shall  depart  forth 
of  one  city,  town  or  parish  to  another;  (2)  nor  out  of  the  lath,  rape,  wapen- 
take or  hundred;  (3)  nor  out  of  the  county  or  shire  where  he  last  served,  to 
serve  in  any  other  city,  town  corporate,  lath,  rape,  wapentake,  hundred, 
shire  or  county;  (4)  unless  he  have  a  testimonial  under  the  seal  of  the  said 
city  or  town  corporate,  or  of  the  constable  or  constal)les,  or  other  head  officer 
or  officers,  and  of  two  other  honest  housholders  of  the  city,  to^\Tl  or  parish 
where  he  last  served,  declaring  his  lawful  departure.  .  .  . 

Section  12.  And  be  it  further  enacted  by  the  authority  aforesaid,  That 
all  artificers  and  labourers,  being  liired  for  wages  by  the  day  or  week,  shall 
betwixt  the  midst  of  tlie  months  of  March  and  September  be  and  continue 
at  tlieir  work  at  or  before  five  of  the  clock  in  the  morning,  and  continue  at 
work  and  not  depart  until  betwixt  seven  and  eight  of  the  clock  at  night 
(except  it  be  in  the  time  of  breakfast,  dinner  or  drinking,  the  which  times 
at  the  most  shall  not  exceed  above  two  hours  and  a  half  in  a  day,  that  is  to 
say,  at  every  drinking  one  half  hour,  for  his  dinner  one  hour,  and  for  his  sleep 
when  he  is  allowed  to  sleep,  tlie  which  is  from  the  midst  of  May  to  the  midst 
of  August,  half  an  hour  at  the  mr)st,  and  at  every  breakfast  one  half  honr): 
(2)  arifl  all  the  said  artificers  and  labourers,  between  the  midst  of  September 
and  tlie  midst  of  Marr-h,  shall  be  and  continue  at  their  work  from  tlie  spring 
of  the  day  in  the  morning  until  the  night  of  the  same  day,  except  it  be  in 


SECT.  I]  EARLY   STATUTES  15 

time  afore  apprjintod  for  breiikfiist  iind  diriner;  (3)  ujx)!!  puin  to  lose  and 
forfeit  one  jK'iiiiy  for  every  h<jur'.s  absence,  to  lje  deducted  and  defaulked 
out  of  his  wages  that  shall  so  offend. 

Section  13.    And  he  it  also  enacted  by  the  authority  aforesaid,  Tliat   No  artificer  or 
every  artificer  and  labourer  that  shall  be  lawfully  retained  in  and  for  the  '"'^^"if"  »*"»!• 
building  or  repairing  of  any  church,  hou.se,  ship,  mill  or  every  other  piece  hL'work  b«'* 
of  work  taken  in  great,  in  task  or  in  gross,  or  that  shall  hereafter  take  uiM)n   fiuiahed. 
him  to  make  or  linisli  any  such  thing  or  work,  shall  continue  and  not  depart 
from  the  .same,  imless  it  be  for  not  i)aying  of  his  wages  or  hire  agreed  on,  or 
otherwise  lawfully  taken  or  appointed  to  serve  the  (Queen's  majesty,  her 
heii-s  or  successors,  cjr  for  other  lawful  cause,  or  without  licence  of  the  miuster 
or  owner  of  the  work,  or  of  him  that  hath  the  charge  theretif,  before  the 
fuiisliing  of  the  said  work;    (2)  upon  i)ain  of  iinpriscjument  by  one  month, 
without  bail  or  mainprise;    C.i)  and  the  forfeiture  of  the  sum  of  five  pounds 
to  the  party  from  whom  he  shall  so  depart.  .  .  . 

Skctiox  15.   And  for  the  declaration  and  limitation  what  wages  ser\'ants,  Thewa«e«of 
labourers  and  artificers,  either  by  the  year  or  day  or  otherwise,  shall  have  "ervantH,  la- 
and  receive.  Be  it  enacted  bv  the  authority  of  tliis  present  i)arliament.  That   ^'"''"-  *;"'■"- 

,  .  ,  ,  ■         ,  .  ■  I-    "  1    i-i  ■   1  •         1        !•      •  F    "^c™'  ""all  DC 

the  justices  of  peace  of  every  shire,  riding  ami  liberty  withm  the  limits  of  a»»e»!«.Hi  by  the 
their  several  commissions,  or  the  more  part  of  them,  IxMiig  then  resiant  within  justices  of 
the  same,  and  the  slieriff  of  that  county  if  he  conveniently  may,  and  every  p«»ce,  sheriff, 
mayor,  bailiff  or  other  head  officer  within  any  city  or  town  corjjorate  wherein  ^' 
is  any  justice  of  ixnice,  within  the  limits  of  the  said  city  or  tow^l  corporate, 
and  of  the  said  corporation,  shall  before  the  tenth  day  of  June  next  coming, 
and  afterward  shall  yearly  at  every  general  sessions  first  to  be  liolden  and 
kept  after  Easter  or  at  some  time  convenient  within  six  weeks  next  follow- 
ing every  of  the  said  feasts  of  ICaster,  assemble  themselves  together;  (2)  and 
they  (.so  assembled)  calling  unto  them  such  discreet  and  grave  i)ersons  of  the 
.said  county  or  of  the  said  city  or  town  corporate,  as  they  shall  think  meet, 
and  conferring  together,  respecting  the  plenty  or  scarcity  of  the  time  and 
other  circumstances  neces.sarily  to  be  considered,  shall  have  authority  by 
virtue  thereof,  within  the  limits  and  precincts  of  their  several  commi.-^sions, 
to  limit,  rate  and  appoint  the  wages,  as  well  of  such  and  so  many  of  the  said 
artificers,  handicrafts-men,  husbandmen  or  any  other  labourer,  serwant  or 
workman,  whose  wages  in  time  past  hath  Wen  by  any  law  or  statute  rated 
and  apiiointed,  (3)  as  also  the  wages  of  all  other  labourers,  artificers,  workmen 
or  apprentices  of  husbandry,  which  have  not  l)een  rated,  (4)  as  they  the  same 
justices,  mayors  or  head  officers  witliin  their  several  commi.><sions  or  lil)erties 
shall  think  meet  by  their  discretions  to  be  rated,  limited  or  appointed  by 
the  year  or  by  the  day,  week,  month  or  otherwise,  with  meat  and  drink  or 
without  meat  and  drink,  (."))  and  what  wages  every  workman  or  labourer 
shall  take  by  the  great,  for  mowing,  reaping  or  threshing  of  corn  and  grain, 
or  for  mowing  or  making  of  hay,  or  for  ditching,  ])aving,  railing  or  hedging, 
by  the  rod,  pearch.  lugg,  yard,  pole,  rope  or  foot,  and  for  any  other  kind  of 
rea.sonable  labours  or  service.  .  .  . 

SKrrioN'  IS.  And  be  it  further  enacted  by  the  authority  aforesaid.  That  The  puniah- 
if  any  person  after  the  said  proclamation  shall  l»e  so  sent  down  and  published,  nicnt  of  him 
shall  hv  anv  secret  wavs  or  means,  directlv  or  indirectly  n^tain  or  keep  anv  *''"'  k'**^'*» 

■  ■    ,  ,"  ,  1      11       •"  "  1  "      nioro  n-ax(9 

servant,  workman  or  labourer,  or  shall  give  any  more  or  greater  wages  or  jj^^^^  ^  ^^^^ 

other  commodity,  contrary  to  the  true  intent  and  purport  oi  this  estatute,  by  the  ju»tic«, 

or  contniry  to  the  rates  or  wages  that  shall  l)e  a.s.ses.sed  or  app«iinted  in  the  Ac 
said  proclamations;    that  then  every  i>erson  that  shall  so  offend,  ami  1x5 


16 


ENGLISH    STATUTES 


[INTROD. 


The  punish- 
ment of  the 
servant,  la- 
bourer, &c. 
that  taketh 
more  wages 
than  is  taxed. 

Artificers 
compellable  to 
work  in  hay- 
time  and  har- 
vest. 


Women  com- 
pellable to 
serve  that  be 
above  twelve 
and  under 
forty  years 
old,  unmar- 
ried, and 
forth  of  serv- 
ice. 


Every  hous- 
holder  dwell- 
ing in  any 
town  corpo- 
rate may  take 
an  apprentice 
for  seven  years. 


thereof  lawfully  convicted  before  any  the  justices  or  other  head  officers 
above-re  mem  bred,  or  either  of  the  said  presidents  and  councils,  shall  suffer 
imprisonment  by  the  space  of  ten  days,  without  bail  or  mainprise,  and  shall 
lose  and  forfeit  five  pounds  of  lawi^ul  money  of  England. 

Section'  19.  And  that  every  person  that  shall  be  so  retained  and  take 
wages  contrary  to  this  estatute  or  any  branch  thereof,  or  of  the  said  procla- 
mation, and  shall  be  thereof  convicted  before  the  justices  aforesaid,  or  any 
two  of  them,  or  before  the  maj'or  or  other  head  officers  aforesaid,  shall 
suffer  imprisonment  by  the  space  of  one  and  twenty  days,  without  bail  or 
mainprise. 

Section  22.  Provided  alwa,vs,  and  be  it  enacted  by  the  authority  afore- 
said. That  in  the  time  of  hay  or  corn  harvest,  the  justices  of  peace  and  every 
of  them,  and  also  the  constable  or  other  head  officer  of  every  township  upon 
request,  and  for  the  avoiding  of  the  loss  of  any  corn,  grain  or  hay,  shall  and 
may  cause  all  such  artificers  and  persons  as  be  meet  to  labour,  by  the  discre- 
tions of  the  said  justices  or  constables,  or  other  head  officers,  or  by  any  of 
them,  to  serve  by  the  day  for  the  mowing,  reaping,  shearing,  setting  or  inning 
of  corn,  grain  and  hay,  according  to  the  skill  and  quality  of  the  person; 
(2)  and  that  none  of  the  said  persons  shall  refuse  so  to  do,  upon  pain  to  suffer 
imprisonment  in  the  stocks  by  the  space  of  two  days  and  one  night:  (3) 
And  the  constable  of  the  town  or  other  head  officer  of  the  same,  where  the 
said  refusal  shall  be  made,  upon  complaint  to  him  made,  shall  have  authority 
by  \artue  hereof  to  set  the  said  offender  in  the  stocks  for  the  time  aforesaid, 
and  shall  punish  him  accordingly,  upon  pain  to  lose  and  forfeit  for  not  doing 
thereof  the  sum  of  forty  shillings. 

Section  24.  And  be  it  further  enacted  by  the  authority  aforesaid.  That 
two  justices  of  peace,  the  mayor  or  other  head  officer  of  any  citj',  borough 
or  town  corporate,  and  two  aldermen,  or  tw'o  other  discreet  burgesses  of  the 
same  city,  borough  or  town  corporate,  if  there  be  no  aldermen,  shall  and 
may,  by  \nrtue  hereof,  appoint  any  such  woman  as  is  of  the  age  of  twelve 
years,  and  under  the  age  of  forty  years  and  unmarried,  and  forth  of  service, 
as  they  shall  think  meet  to  ser\^e,  to  be  retained  or  serve  by  the  year,  or  by 
the  week  or  day,  for  such  w'ages,  and  in  such  reasonable  sort  and  manner 
as  they  shall  think  meet;  (2)  and  if  any  such  woman  shall  refuse  so  to  serve, 
then  it  shall  be  lawful  for  the  said  justices  of  peace,  mayor  or  head  officers, 
to  commit  such  woman  to  ward,  until  she  shall  be  bounder  to  serve  as  is 
aforesaid. 

Section  26.  And  be  it  further  enacted.  That  everj'  person  lioing  an 
housholder,  and  twenty-four  years  old  at  the  least,  dwelling  or  inhabiting, 
or  which  shall  dwell  and  inhabit  in  any  city  or  town  corporate,  and  using 
and  exercising  any  art,  mystery  or  manual  occupation  there,  shall  and  may, 
aftx^r  the  feast  of  Saint  John  Baptist  next  coining,  during  tlie  time  that  he 
shall  so  dwell  or  inhabit  in  any  such  city  or  town  corporate,  and  use  and 
exercise  any  such  mystery,  art  or  manual  occupation,  lia\e  and  retain  the 
son  of  any  freeman,  not  occupying  husbandry,  nor  being  a  labourer,  and 
inhabiting  in  the  same,  or  in  any  other  city  or  town  that  now  is  or  hereafter 
shall  be  and  continue  incorporate,  to  serve  and  be  boimd  as  an  apprentice 
after  the  custom  and  order  of  the  city  of  Tiondon,  for  seven  years  at  the 
least,  so  as  the  term  and  years  of  such  apprentice  do  not  expire  or  determine 
afore  such  apprentice  shall  l>e  of  the  age  of  twenty-four  years  at  the  least. 

Section  31.  And  l)e  it  further  enacted  by  the  authority  nff)resai(l,  That 
after  the  first  day  of  May  next  coming,  it  shall  not  be  lawful  to  any  jierson 


SECT.   I]  i:\lU.V    rSTATUTES  17 

or  persons,  otlier  tliaii  such  as  now  do  lawfully  use  orexerci.se  any  art,  mystery   N'onc  may  uae 
or  manual  occupation,  (2)  to  sot  up,  occu|)v,  use  or  cxerci.>^' anv  cni/t,  riivsterv  ""^  ""♦"u'»i 
or  occupation,  now  used  or  occuincd  witlun  the  reahn  of  hiiKland  or  Wales;  except  he  hath 
except  he  shall  have  hcen  hmutiiht  up  therein  seven  years  at  the  least  as  an    i,o<>n  appren- 
apprentice,  in  inaiuier  and  form  ahovesaid;    (4)  nor  to  set  any  ix>rson  on   tic*?  to  the 
work  in  such  myst<'ry,  art  or  occupation,  Ix-ing  not  a  workman  at  tliis  d/iy;  """'e.  *c- 
(5)  except  he  shall  have  heen  api)rentice  as  is  aforesaid;    (0)  or  else;  having 
served  a.s  an  apprentice  as  is  aforesaid,  shall  or  will  In-come  a  journeyman, 
or  be  hirtid  by  the  year;    (7)  upon  pain  that  every  person  willingly  offend- 
ing or  doing  the  contrary,  shall  forfeit  and  lose  for  every  default  forty  shil- 
lings for  every  month. 

Section  iW.    .\nd  !)(>  it  further  enacted  hv  the  authority  afftresaid.  That  He  thai  iniih 
all  and  everv  person  and  iktsoiis  that  shall  have  three  apprentices  in  anv  of  tj'fe*" ''•f"^*^"- 

1  .1  ;.  .       •  ,•  r  I    Ai  1  r    11  1  ti'-ca  must 

the  .said  crafts,  mysteries  or  occui)ations  of  a  cloth-maker,  fuller,  slieerman,   keep  one  jour- 
weaver,  taylor  or  sho(>mak('r,  shall  retain  and  keep  one  journe>Tnan,  and  for   neym&n. 
every  other  apprentice  above  the  number  of  the  said  three  apprentices,  one 
other  journeyman,  upon  pain  for  every  default  therein  ten  pounds. 

Act  of  7  George  I,  stat.  1,  c.  13  (1720)  ' 

Skction   1.    WIuMeas  great  numl>ers  of  journeymen  taylors,  in  and  about   All  contract* 
the  cities  of  London  and  Westminster,  and  others,  who  liave  .served  appren-  between  jour- 
ticeships,  or  Ikhmi  brought  up  in  the  art  fir  mystery  of  a  taylor,  have  lately  !„„,  j,,  Lon- 
de[)arted  from  their  services  without  just  cause,  and  have  entred  into  com-  don  und  Wcet- 
biiiations  to  advance  their  wages  to  unreasonable  i)rices,  and  lessen  their  niinster.  for 
usual  hours  of  work,  which  is  of  evil  example,  and  manifestly  tends  to  the  «''"'"'■'"« 
prejudice  of  trade,  to  the  encouragement  of  idleness,  and  to  the  great  in-  ^^  les.^eninK 
crease  of  the  poor:   for  remedy  thereof,  may  it  plea.se  your  most  excellent  their  hours  of 
Majesty,  that  it  may  be  enacted;   and  be  it  enacted  by  the  King's  most  ^"^^-  <ip<iared 
excellent  majesty,  by  and  with  the  advice  and  consent  of  the  lords  spiritual  ^'^^  '^'*'*  ^<""^ 
and  temporal  and  conunons,  in  this  present  parliament  a.ssembled,  and  by 
the  authority  of  the  same,  That  all  contracts,  covenants  or  agreements  in 
writing,  or  not  in  writing,  heretofore  made  or  entred  into,  or  hereafter  to 
be  made  or  entred  into,  by  or  between  any  persons  brought  up  in,  or  pro- 
fessing, using  or  exercising  the  art  or  mystery  of  a  taylor,  or  journeyman   Taylors  en- 
tavlor,  in  making  up  mens  or  womens  work,  in  the  cities  of  London  and  ^"""^  '"*°  """^^ 
Westminster,  or  either  of  them,  or  within  the  weekly  bills  of  mort^ility,  for  ^rT'Ma"y 
advancing  their  w^ages,  or  for  lessening  their  usual  hours  of  work,  shall  be,   1721,  to  be 
and  arc  hereby  declared  to  be  illegal,  null  and  void  to  all  intents  and  jjur-  committci  to 
poses;   and  further,  that  if  any  taylor,  journeyman  taylor,  or  other  person   *'"" ''""••'•" «' 
brought  up  in,  or  professing,  using  or  exercising  the  art  or  mystery-  of  a  tay-  ^„q1  f^^  ('^„ 
lor,  or  journeyman  taylor,  within  the  limits  aforesaid,  shall  at  any  time  or  months  \»ith- 
times  after  the  first  day  of   May  one  thousand  .seven  hundred   and  twenty  out  bail, 
one,  keep  up,  contiime,  act  in,  make,  enter  into,  sign,  seal,  or  l)e  knowingly 
interested  or  concerned  in  ;iny  contract,  covenant  or  agreement,  by  this  act 
declared  to  be  illegal,  null  and  void,  every  i^erson  or  f)ersons  so  offending, 

>  This  Act  wa-s  amended  by  8  Cico.  Ill,  c.  17. 

For  similar  statute.';  covcrinp;  other  trades  enacted  prior  to  the  peneral  act.s  of 
17<)',)  and  ISOO,  see  12  Geo.  I,  c.  34  (172."))  (woolen  indiustry);  n  Geo.  I.  c.  27  (1729) 
(shoemakers);  22  Geo.  II,  c.  27  (1749)  (hatters);  17  Geo.  Ill,  c.  55  (1777)  (.silk 
weavers);  ."{t)  (!eo.  Ill,  c.  Ill  (1795)  (^paper  inakinji)  (fixing  a  work  day  of  twelve 
hoiu's).     During:  this  period  many  other  sinjlar  statutes  were  passed. 


18 


ENGLISH    STATUTES 


[INTKOD. 


Hours  of  work 
and  wages  ap- 
pointed. 


% 


•b 


J 


I 


Preamble. 


39  Geo.  3.  c. 
81,  repealed. 


being  lawfully  convicted  thereof  upon  the  oath  or  oaths  of  one  or  more 
credible  witness  or  mtnesses  before  any  two  justices  of  the  peace  in  their 
jurisdictions  within  the  limits  aforesaid,  upon  any  information  exhibited,  or 
prosecution,  within  three  months  after  the  offence  committed,  (which  oaths 
the  said  justices  are  hereby  impowered  and  required  to  administer)  everj^  such 
offender  shall,  by  order  of  such  justices,  at  their  discretion  be  committed, 
either  to  the  house  of  correction,  there  to  remain  and  be  kept  to  hard  labour 
for  any  time  not  exceeding  two  months,  or  to  the  common  gaol,  as  they  shall 
see  cause,  there  to  remain  without  bail  or  mainprize  for  any  time  not  exceed- 
ing two  months. 

Section  2.  And  for  declaring,  limiting  and  appointing  the  hours  of  work, 
and  wages  for  journe\Tiien  taylors,  servants,  and  apprentices  to  taylors, 
within  the  limits  aforesaid;  be  it  enacted  by  the  authorit\^  aforesaid.  That 
from  and  after  the  first  day  of  May  one  thousand  seven  hundred  and  twentj' 
one,  the  hours  of  work  for  all  journeyman  taylors,  servants  and  apprentices 
to  taylors,  and  other  jjersons  imploved  or  to  be  imployed,  or  retained  as 
taylors,  in  making  up  mens  or  womens  work,  or  such  servants  or  appren- 
tices within  the  cities  of  London  and  Westminster,  or  either  of  them,  or  within 
the  weekly  bills  of  mortality,  shall  be  from  six  of  the  clock  in  the  morning 
until  eight  of  the  clock  at  night;  excepting  only  that  there  shall  be  allowed 
by  the  master  one  penny  halfpenny  a  day  for  breakfast,  and  one  hour  for 
dinner,  in  the  time  aforesaid;  and  for  the  said  time  or  hours  of  work  afore- 
said there  shall  be  paid  unto  every  journeyman  taylor,  or  other  person  im- 
ployed, or  to  be  imployed  or  retained  as  a  journeyman  tavlor,  for  his  work, 
during  the  hours  aforesaid,  the  wages  and  sums  following,  (that  is  to  say) 
from  the  five  and  tw-entieth  day  of  ]\Iarch  to  the  four  and  twentieth  day 
of  June,  any  sum  not  exceeding  two  shillings  per  diem,  and  for  the  rest  of 
the  year  one  shilling  and  eight  pence  per  diem.^ 


Section  2.    Nineteenth  Century  and  Later  Legidation 

Combination  Act,  1800  (40  George  III,  c.  106)  ~ 

Section  1.  Whereas  it  is  expedient  to  explain  and  amend  an  act,  passed 
in  the  thirty-ninth  year  of  the  reign  of  his  present  Majesty,  intituled.  An 
act  to  prevent  unlawful  combinations  of  workmen;  be  it  therefore  enacted 
by  the  King's  most  excellent  majesty,  by  and  with  the  advice  and  consent 
of  the  lords  spiritual  and  temix)ral,  and  commons,  in  this  present  parlia- 
ment assembled,  and  by  the  authority  of  the  same.  That  from  and  after  the 
passing  of  this  act,  the  said  act  shall  be  repealed;  and  that  all  contni^ts, 
/covenants,  and  agreements  whatsoever,  in  wTiting  or  not  in  writing,  at  any 
I  time  or  times  heretofore  made  or  entered  into  by  or  between  any  journey- 

'  Subsequent  sections  of  the  statute  provide  for  various  punishments  for  breach 
of  the  forf.'going  jjrovisions,  for  journeymen  tailors  dcpartinfi;  from  their  ser\'ice 
before  the  end  of  the  term  or  for  refusing  to  work,  for  journeymen  taking  greater 
wages  than  those  fixed  by  law,  etc. 

2  Thi.s  Act  supersedes  the  Coml)ination  Act  of  the  preceding  year,  39  Geo.  Ill, 
c.  81  (1799).  There  i.s  little  .substantial  diffen^nce  between  these,  except  that  the 
latter  Act  contains  a  series  of  arbitration  clauses. 

A.sto  the  CJombination  Acts,  see  Dicey,  Law  ;unl  Opinion  in  England  (2(1  ed., 
1919),  pp.  95  el  scq.;  Stephen,  History  of  the  Crimiiud  Law,  vol.  '6,  pp.  200-209; 
Webb,  History  of  Trade  Unionism  (1920  ed.),  pp.  09  ct  seq. 


trui-tn  Jx-twc-en 
riiaxtcni  uiitl 
tnpn)  ohall  b« 
void. 


SECT.  II]  NINETEENTH   CENTURY   LEGISLATION  19 

men  manufacturers  or  other  persons  within  this  kinj^doni,  for  obtaining  an   All  contrarui 
advance  of  waj^cs  of  them  or  any  of  them,  or  any  other  journeymen  manu-   ^"^^'^^"i"^'' 
facturers  or  workmen,  or  other  iK-rsons  in  anv  manufacture,  trade,  or  Inisi-  ?"^'7    .'"'" 
ness,  or  for  lesscmiif^  or  altenng  their  or  any  of  their  usual  hours  or  time  of  an  iuivan<»?of 
workirif^,  or  for  decreasirif?  the  (|uantify  of  work,  (save  and  except  any  con-j  whk™,  alu-r- 
tract  made  or  to  be  made  between  any  master  and  his  journe>7nan  or  manuV  '"'^  theuMual 
facturer,  for  or  on  account  of  the  work  or  service  of  such  journevman  on  V""^ "'  ""'I'* 
manufacturer  with  whom  such  contract  may  ])e  made),  or  for  preventinp;  ori  the  M^l^y*^ 
hindering  any  jx^rson  or  persons  from  employinp  whomsoever  he,  she,  or  tlieyl  of  work.  Ac 
shall  think  projH'r  to  em{)loy  in  his,  her,  or  their  manufacture,  trade,  or  busi-   '•""••I't  "•"- 
ness,  or  for  controlling  or  anvway  affectiiiR  any  person  or  jM'rsons  carriing 
on  any  manufacture,   trade,  or  business,  in   the  conduct   or  manaKement 
thereof,  shall  Ix'  and  the  siimc  are  hereby  declared  to  Ix;  illegal,  null,  andj 
void,  to  all  intents  and  purposes  whatsoever. 

Skction  2.   And  1«  it  further  enacted,  That  no  journeyman,  workman,  Kvcry  worit- 
or  other  person  shall  at  any  time  after  the  passing  of  this  act  make  or  enter  '"""•  *'^'; 
into,  or  be  concerned  in  the  making  of  or  entering  into  any  such  contract.  P'^'"f  ^^'f 
covenant,  or  agreement,  in  wnting  or  not  in  writing,  as  is  herein-lx^fore  be  Kuiity  of 
declared  to  1x3  an  illegal  covenant,  contract,  or  agreement;  and  everv'  jour-  any  Buch  of- 
neyman  and  workman  or  other  {x?rson  who,  after  the  pa.ssing  of  this  act,  f^nrp.  Bhaii  be 
shall  l)e  guilty  of  any  of  the  said  offences,  being  thereof  lawfully  convicted,  X-Tommen'' 
upon  his  own  confession,  or  the  oath  or  oaths  of  one  or  more  credible  witness  g^o],  or  the 
or  witnesses,  before  any  two  justices  of  the  peace  for  the  county,  riding,  din-  house  of  cor- 
sion,  city,  lilwrty,  town,  or  place  where  such  offence  shall  be  committed,  rection; 
(which  oath  either  of  such  justices  is  hereby  authori.sed  and  empowered  to 
administer  in  such  case,  and  in  all  other  cases  where  an  oath  is  to  be  taken 
before  any  justices  of  the  peace  in  pursuance  of  this  act),  within  three  cal- 
endar months  next  after  the  offence  shall  have  been  committed,  shall,  by 
order  of  such  justices,  be  committed  to  and  confined  in  the  common  gaol 
within  his  or  their  juVisdiction,  for  any  time  not  exceeding  three  calender 
months,  or  at  the  discretion  of  such  justices  shall  be  committed  to  some 
house  of  correction  within  the  .same  jurisdiction,  there  to  remain  and  to  be  aa  also 
kept  to  hard  labour  for  any  time  not  exceeding  two  calendar  months.  »">"  workman 

Section  3.   And  be  it  further  enacted.  That  every  journevman  or  work-  e"^""«  '"'^ 

.1  I  1     11       i  .•  r         *.  1  "•  /.     1  •  any  combina- 

raan,  or  other  person,  who  shall  at  any  time  after  the  passing  of  this  act  tionfora<i- 
enter  into  any  combination  t<i  obtain  an  advance  of  wages,  or  to  lessen  or  vancinK  waKw, 
alter  the  hours  or  duration  of  the  time  of  working,  or  to  decrea.se  the  quantity  *•"  o""  *''° 
of  work,  or  for  anv  other  pun)o.-;e  contrarv  to  this  act,  or  who  shall,  bv  giving  "''''"  '^"J''»^°"'" 

,  •  •  1-    •,    ,•  •...,.'  1       ■  ''to  prevent  any 

money,  or  by  persuasion,  .solicitation,  or  intimidation,  or  any  other  means,  ^.„rkman 
wilfully  and  maliciously  endeavour  to  prevent  any  unhired  or  unemployed  from  hirina 
journeyman  or  workman,  or  other  ixm-soii,  in  any  manufacture,  trade,  or  himself,  or 
business,  or  any  other  jx'rson  wanting  employment  in  such  manufacture,  P'^<"^"f'  °"  ^'^ 
trade,  or  business,  from  hiring  him.'^elf  to  any  manufacturer,  or  tradesman,  or  employ,  or 
person  conducting  any  manufacture,  trade,  or  business,  or  who  shall,  for  the  who  shall 
purpose  of  obtaining  an  advance  of  wages,  or  for  any  other  purjxxse  contrary  hinder  any 
to  the  provisions  of  this  act,  wilfuUv  and  maliciou.slv  decov.  wrsuade,  solicit,   "'•■^■''•'''  f"^™ 
intimidate,  inHuence,  or  prevail,  or  attemjit  or  endeavour  to  prevail,  on  any  person,  or 
journeyman  or  workman,  or  other  jx'rson  hiretl  or  employed,  or  to  lx»  hired   without  ren- 
or  employed  in  any  such  manufactun>,  trade,  or  business,  to  tjuit  or  leave  oonnWc  cauj>« 
his  work,  service,  or  emplovment,  or  who  shall   wilfullv  and  maliciouslv  »'>•■»" ''••'"•^  •<> 

,  ■      ,  .  ■  -  ,  ■    ,  ,        ■       work  with  an\* 

niiKier  or  prevent  any  manufacturer  or  tradesman,  or  other  ix^rs4)n,  from   o,i,er  work- 
employing  in  his  or  her  manufacture,  trade,  or  business,  such  journeymen,   man. 


20 


ENGLISH    STATUTES 


[INTROD. 


Workmen  of- 
fending ex- 
empted from 
Punishment 
under  the  Com- 
mon and 
Statute  Law. 


Masters  offend- 
ing in  like 
Manner  ex- 
empted from 
Pucishment. 

t  Sic. 


workmen,  and  other  persons  as  he  or  she  shall  think  proper,  or  who,  bemg 
hired  or  employed,  shall,  without  any  just  or  reasonable  cause,  refuse  to 
work  with  any  other  journeyman  or  workman  employed  or  hired  to  work 
therein,  and  who  shall  be  lawfully-  convicted  of  any  of  the  said  offences,  upon 
his  own  confession,  or  the  oath  or  oaths  of  one  or  more  credible  witness  or 
witnesses,  before  any  two  justices  of  the  peace  for  the  county,  riding,  division, 
cit}',  libert\%  town,  or  place,  where  such  offence  shall  be  committed,  within 
three  calendar  months  next  after  the  offence  shall  have  been  committed, 
shall,  by  order  of  such  justices,  be  committed  to  and  be  confined  in  the  com- 
mon gaol  within  his  or  their  jurisdiction,  for  any  time  not  exceeding  three 
calendar  months;  or  otherwise  be  committed  to  some  house  of  correction 
within  the  same  jurisdiction,  there  to  remain  and  to  be  kept  to  hard  labour 
for  any  time  not  exceeding  two  calendar  months. ^ 

Combination  Act,  1824  (5  George  IV,  c.  95)  ^ 

[Section  1.  Repeals  the  Combination  Act  of  1800  and  all  the  then  existing 
Acts  relating,  to  comhiyiations  of  xvorkmen.  —  Ed.] 

Section  2.  And  be  it  further  enacted.  That  Journeymen,  Workmen  or 
other  Persons  who  shall  enter  into  any  Combination  to  obtain  an  Advance, 
or  to  fix  the  Rate  of  Wages,  or  to  lessen  or  alter  the  Hours  or  Duration  of 
the  Time  of  working,  or  to  decrease  the  Quantity  of  Work,  or  to  induce  an- 
other to  depart  from  his  Service  before  the  End  of  the  Time  or  Term  for 
which  he  is  hired,  or  to  quit  or  return  his  Work  before  the  same  shall  be 
finished,  or  not  being  hired,  to  refuse  to  enter  into  Work  or  Employment, 
or  to  regulate  the  Mode  of  carrying  on  any  Manufacture,  Trade  or  Busi- 
ness, or  the  Management  thereof,  shall  not  therefore  be  subject  or  liable  to 
any  Indictment  or  Prosecution  for  Conspiracy,  or  to  any  other  Criminal 
Information  or  Punishment  whatever,  under  the  Common  or  the  Statute 
Law. 

Section  3.  And  be  it  further  enacted.  That  Masters,  Employers  or 
other  Persons,  who  shall  enter  into  any  Combination  to  lower  or  to  fix  the 
Rate  of  Wages,  or  to  increase  or  alter  the  Hours  or  Duration  of  the  Time 
of  working,  or  to  increase  the  Qu;antity  of  Work,  or  to  regulate  the  Mode  of 
carrying  on  any  Manufacture,  Trade  or  Business,  or  the  Management  thereof, 
shall  not  therefore  be  subject  or  liable  to  any  Indictment  or  Prosecution,  or,t 
for  Conspiracy,  or  to  any  other  Criminal  Infonnation  or  Punishment  what- 
ever, under  the  Common  or  the  Statute  Law. 

•  Section  4  of  the  Act  makes  criminally  punishable  all  persons  who  shall  at- 
tend any  meeting  for  the  purpose  of  making  any  tsuch  contract,  or  who  shall  sum- 
mon or  endeavour  to  induce  any  journeyman  to  attend  any  such  meeting,  or 
who  shull  collect  any  money,  etc. 

Section  5  makes  criminally  punishable  all  persons  who  contribute  for  any  ex- 
pen.ses  incurred  for  ac-tion  contrary  to  this  Act,  or  towards  the  support  of  any 
person  for  inducing  him  not  to  work. 

Other  .sections  contain  provi.sions  for  the  better  onforcniiciit  of  the  Act.  Sec- 
tions 18-22  contain  interesting  provisions  "  for  .settling  all  disputes  that  may  arise 
between"  masters  and  workmen  "respecting  wages  and  work"  by  means  of 
arbitration. 

«  On  the  Combination  Acts  of  1824  and  1825,  see  Dicey,  Law  and  Opinion  in 
England  (2(1  ed.,  1910),  pp.  191  et  sec/.;  Stephen,  History  of  the  (Criminal  Law,  vol. 
3,  pp.  212-210;  Webb,  Hi.story  of  Trade  Unionism  (1920  ed.),  Chap.  2;  C.raliam 
Wallas,  Life  of  Francis  Place,  Cha[).  8. 


{5ECT.  II]  NIN'ETEEXTH    CENTURY   LEGISLATION-  21 

Section  o.   And  he  it  fiirtlior  onacted,  That  if  any  Person  In-  \'i< deuce*   F\>rcin«  Work- 
to  the  Person  or  Property,  l»y  Tlireats  or  l>y  Intinii(hition,  whall  wilfully-  or   ""°'  ''*'  ^**^ 
nudiciously  force  another  to  tiepart  from  hi.s  Hiring  or  Work  lx.'f<jre  the  Knd   oTend  m  herein 
of  the  Time  or  Term  for  which  he  is  hired,  or  return  his  Work  Ix'fore  the   nimtioued. 
same  shall  he  finished,  or  damnify,  spoil  or  destroy  any  Machinery,  Tools,   For<inj{  Muur 
Go;)ds,  Wares  or  \\'ork,  or  jjrevent  any  Person  n(;t  Ix-in^  hired  from  accejjt-   ***'  ^''"'Y"^^"-"- 
ing  any  Work  or  l']mpl(jymcnt;  or  if  any  Person  shall  wilfully  or  maliciously   .Mo^jc^f  con- 
use  or  employ  Violence  to  the  Person  or  ProjH'rty,  Threats  or  Intimidation   ductinu  hi« 
towards  another  on  account  of  his  not  complying  with  or  conforming  to  any  Buain«j». 
Rules,  Orders,  Resolutions  or  Regulations  made  to  obtain  an  Advance  of 
Wages,  or  to  lessen  or  alter  the  lloui-s  of  working,  or  to  decrease  the  (Quantity 
of  Work,  or  to  regulate  the  Mode  of  carrying  on  any  Manufacture,  Trade 
or  Business,  or  the  Management  thereof;   or  if  any  Person,  by  \'iolence  to 
the  Pei"son  or  Pnjix'rty,  by  Threats  or  by  Intimidation,  shall  wilfully  or 
maliciously  force  any  Master  or  Mistress  Manufacturer,  his  or  her  Foreman 
or  Agent,  to  make  any  Alteration  in  their  Mode  of  regulating,  managing,   Puniahment. 
conducting  or  carrying  on  their  Manufacture,  Trade  or  Business;    cverj' 
Person  so  offending,  or  causing,  procuring,  aiding,  alx^tting  or  assisting 
in  such  Offence,  being  convicted  thereof  in  Manner  hereafter  mentioned,  shall 
be  imprisoned  only,  or  imprisoned  and  kept  to  hard  Labour,  for  any  Time 
not  exceeding  Two  Calendar  Months. 

(8k(T1()N  ().     Mtikrs  criminal  the  combining  to  effect  such  purposes  as  are 
prohibited  in  Section  o.  —  I'-d.] 

Combination  Act,  1825  (6  George  IV,  c.  129)  ^ 

[Section  1.    Repeals  the  Combination  Act  of  lS2.'t.  —  Kd.) 

Section  3.   And  be  it  further  enacted,  That  from  and  after  the  passing  Compcilinii 
of  this  Act,  if  any  Person  shall  by  ^'iolence  to  the  Person  or  Property,  or  by   Journeymen  to 
Threats  or  Intimidation,  or  bv  molesting  or  in  anv  wav  obstructing  another,   ''=^^''' ^"'p  "y* 
force  or  endeavour  to  lorce  any  .Journeyman,  Manufacturer,  \\  orkman  or  return  Work 
other  Person  hired  or  employed  in  any  Maiuifacture,  Trade  or  Business,  to   unfinished; 
depart  from  his  Hiring,  iMuploj-ment  or  Work,  or  to  return  his  AA'ork  before  preventing 
the  same  shall  be  finished,  or  prevent  or  endeavour  to  prevent  any  Journey-  "'j""**^  *^'"' 
man,  Manufacturer,  Workman  or  other  Person  not  being  hired  or  employed   pcinng  them 
from  hiring  himself  to,  or  from  accepting  Work  or  Kmj)Ioyment  from  any   to  belong  to 
Person  or  Persons;    or  if  anj'  Person  shall  use  or  employ  \'iolence  to  the   Clubs.  Ac;  or 
Person  or  Proj)erty  of  another,  or  Threats  or  Intimidation,  or  shall  molest   *°  p^^    "***• 
or  in  any  way  obstnict  another  for  the  Purpo.'ie  of  forcing  or  inducing  such 
Person  to  belong  to  any  Club  or  Association,  or  to  contribute  to  any  com- 
mon Fund,  or  to  pay  any  Fine  or  Penalty,  or  on  account  of  his  not  belonging 
to  any  particular  Club  or  A.s.sociation,  or  not  having  contributed  or  having 
refused  to  contribute  to  any  common  Fund,  or  to  pay  any  Fine  or  Penalty, 
or  on  account  of  his  not  having  complied  or  of  his  refusing  to  comply  with 
any  Rules,  Orders,  ]?esolutions  or  l^egulations  made  to  obtain  an  Ailvance 
or  to  reduce  the  Rate  of  Wages,  or  to  lessen  or  alter  the  Hours  of  working,  or 
to  decrease  or  alter  the  (Quantity  of  Work,  or  to  regulate  th(>  Mode  of  carry-  ©r  to  alter  Mode 
ing  on  any  Manufacture,  Trade  or  Business,  or  the  Management  thereof;   ofrarr>ingon 
or  if  any  Person  shall  by  violence  to  the  Person  or  Proj)erty  of  another,  or   B"»»n«»- 
by  Threats  or  Intimidation,  or  by  molesting  or  in  any  way  obstructing  an- 

'   Sep  note  2.  p.  20,  supra. 


22 


ENGLISH   STATUTES 


[INTROD. 


Punishment. 


Proviso  for 
Meetings  for 
settling  Rates 
of  Wages  to  be 
received,  or 
Hours  of  Work 
to  be  employed 
by  the  Persons 
meeting. 


Trade  union 
not  criminal. 


Trade  union 
not  unlawful 
for  civil  pur- 
poses. 


other,  force  or  endeavour  to  force  any  Manufacturer  or  Person  carrjnng  on 
any  Trade  or  Business,  to  make  any  Alteration  in  his  Mode  of  regulating, 
managing,  conducting  or  carrying  on  such  Manufacture,  Trade  or  Business, 
or  to  limit  the  Number  of  his  Apprentices,  or  the  Number  or  Description  of 
his  Journe^^llen,  Workmen  or  Servants;  everj'  Person  so  offending  or  aiding, 
abetting  or  assisting  therein,  being  convicted  thereof  in  Manner  hereinafter 
mentioned,  shall  be  imprisoned  only,  or  shall  and  may  be  imprisoned  and 
kept  to  Hard  Labour,  for  any  Time  not  exceeding  Three  Calendar  Months. 

Section  4.  Provided  always,  and  be  it  enacted,  That  this  Act  shall  not 
extend  to  subject  any  Persons  to  Punishment,  who  shall  meet  together  for 
the  sole  Purpose  of  consulting  upon  and  determining  the  Rate  of  Wages  or 
Prices,  which  the  Persons  present  at  such  Meeting  or  any  of  them,  shall 
require  or  demand  for  his  or  their  Work,  or  the  Hours  or  Time  for  which 
he  or  they  shall  work  in  any  Manufacture,  Trade  or  Business,  or  who  shall 
enter  into  any  Agreement,  verbal  or  written,  among  themselves,  for  the 
Purpose  of  fixing  the  Rate  of  Wages  or  Prices  which  the  Parties  entering 
into  such  Agreement,  or  any  of  them,  shall  require  or  demand  for  his  or  their 
Work,  or  the  Hours  of  Time  for  which  he  or  they  will  work,  in  any  Manu- 
facture, Trade  or  Business;  and  that  Persons  so  meeting  for  the  Purposes 
aforesaid,  or  entering  into  any  such  Agreement  as  aforesaid,  shall  not  be 
liable  to  any  Prosecution  or  Penalty  for  so  doing;  any  Law  or  Statute  to  the 
contrary  notwithstanding. 

[Section  5.  Applies  to  employers  provisio)is  similor  to  those  enacted  in  Sec- 
tion 4  relating  to  employees.  —  Ed.] 

The  Trade  Union  Act,  1871  (34  &  35  Vict.  c.  31)  ^ 

Section  2.  The  purposes  of  any  trade  union  shall  not  by  reason  merely 
that  they  are  in  restraint  of  trade,  be  deemed  to  be  unlawful  so  as  to  render 
any  member  of  such  trade  union  liable  to  criminal  prosecution  for  conspiracy 
or  otherwise. 

Section  3.  The  purposes  of  any  trade  vmion  shall  not,  by  reason  merely 
that  thej'^  are  in  restraint  of  trade,  be  unlawful  so  as  to  render  void  or  void- 
able any  agreement  or  trust. 

[Sections  6  ct  seg.  Provide  for  and  regulate  the  registry  of  trade  unions.  — 
Ed.1 


Penalty  for 
threats,  mo- 
lestations, and 
obstruction. 


Criminal  Law  Amendment  Act,  1871  (34  &,  35  Vict.  c.  32) 

Section  L  Everj'^  person  who  shall  do  any  one  or  more  of  the  following 
acts,  that  is  to  say, 

(1)  L^se  violence  to  any  person  or  any  property, 

(2)  Threaten  or  intimidate  any  person  in  such  manner  as  would  justify 

a  justice  of  the  peace,  on  complaint  made  to  him,  to  bind  over  the 
person  so  threatening  or  intimidating  to  keep  the  peace, 

(3)  Molest  or  obstruct  any  person  in  manner  defined  by  this  section, 
with  a  view  to  coerce  such  person,  — ■ 

'  The  Trade  Union  Act,  1871,  was  amended  liy  the  Trade  Union  Act  Amond- 
mnnt  Act,  1876  (39  fc  40  Vict.  v.  22).  The  amcndincnta  relate  to  the  provisions 
for  roK'Mtraf  ion  of  trade  unions. 

As  lo  the  pa-ssiiif?  of  lliis  Act,  sec  Webb,  History  of  Trade  Unionism  (1920  cd.), 
pp.  270  ti  seq. 


SECT.  II]  NINKTEENTH    CENTUHV    LK(JlSLATIO\  23 

(1)  Being  a  master  to  dismiss  or  to  cease  to  employ  any  workman,  or 

being  a  workman  to  quit  any  employment  or  to  return  work  l_)e- 
fore  it  is  finished; 

(2)  Being  a  master  not  to  olTcr  or  being  a  workman  not  to  acccjjt  any 

employment  or  work; 

(3)  Being  a  master  or  workman  to  l>eloiig  or  not  to  belong  to  any  tem- 

porary or  jKTmancnt  association' or  comljination; 

(4)  Being  a  master  or  workman  to  i)ay  any  fine  or  iK'nalty  imprjsed  by 

any  temporary  or  i)ermanent  association  or  combination; 

(5)  Being  a  master  to  alter  the  mode  of  carr>'ing  on  his  business,  or  the 

number  or  description  of  any  px^rsons  employed  by  him, 
shall  Ix^  liable  to  imprisonment,  with  or  without  hard  labf)ur,  for  a  term  not 
exceeding  three  mouths. 

A  person  shall,  for  tlie  jjurposes  of  this  Act,  be  deemed  to  molest  or  (jI> 
struct  another  person  in  any  of  the  following  cases;   that  is  to  say, 

(1)  If  he  i)ersistently  follow  such  jx-rson  about  from  jjlace  to  jjlace: 

(2)  If  he  hide  any  t(Jols,  clothes,  or  other  projjerty  owiu-d  or  used  by  such 
person,  or  deprive  him  of  or  hinder  him  in  the  use  thereof: 

(3)  If  he  watch  or  beset  the  house  or  other  place  where  such  ix'rson  re- 
sides or  works,  or  carries  on  business,  or  happens  to  be,  or  the  ajjproach  to 
such  house  or  place,  or  if  with  two  or  more  other  persons  he  follow  such  jx^r- 
son  in  a  disorilerly  manner  in  or  through  any  street  or  road. 

Nothing  in  this  section  shall  prevent  any  person  from  Ix-iiig  liable  under 
any  other  Act,  or  otherwise,  to  any  other  or  higher  punishment  tlian  is  pro- 
vided for  any  offence  t)v  this  section,  so  that  no  person  be  punished  twice 
for  the  same  offence. 

Provided  that  no  person  shall  Ix?  liable  to  any  punishment  for  doing  or 
conspiring  to  do  any  act  on  the  ground  that  such  act  restrains  or  tends  to 
restrain  the  free  course  of  trade,  unle.ss  such  act  is  one  of  the  acts  herein- 
before sjx^cified  in  this  section,  and  is  done  with  the  object  of  coercing  as 
hereinbefore  mentioned. 


Conspiracy,  and  Protection  of  Property  Act,  1875  (38  &  39  Vict.  c.  86) 

Section  3.   An  agreement  or  combination  by  two  or  more  jx'rsons  to  do   Amendment 
or  procure  to  be  done  any  act  in  contemplation  or  furtherance  of  a  trade  «'  '"»*  ^^  *» 
dispute  between  employers  and  workmen  shall  not  be  indictable  as  a  con-  [""fT'l"*^*  !L 
spiracj'  if  such  act  committed  by  one  jx?rson  would  not  \ye  punishable  as 
a  crime.  .  .  . 

Nothing  in  this  section  shall  affect  the  law  relating  to  riot,  unlawful  as- 
sembly, lireach  of  the  ix>ace,  or  sedition,  or  any  offence  against  the  State  or 
the  Sovereign.  .  .  . 

Sectio.n  7.    Every  pei'son  who,  with  a  view  to  comjx^l  any  otlier  {x>rson   Penalty  for  in- 
to abstain  from  doing  or  to  do  any  act  which  such  otlier  ]x^rson  has  a  legal  timidaiion  or 
right  to  do  or  abstain  from  doing,  wrongfullv  and  without  legal  authority.  —  annoyance 

,.  ,*  Dv  violcDct  or 

1.  Uses  violence  to  or  intimidates  such  other  person  or  his  wife  or  children,  oihen»ii»e. 

or  injures  his  projx^rty;  or, 

2.  Persistently  follows  such  other  person  about  from  place  to  place;   or, 

3.  Hides  any  tools,  clothes,  or  other  projx^rty  o\\'ned  or  used  by  such  other 

person,  or  deprives  him  of  or  hindei-s  him  in  the  use  thereof;  or. 

4.  Watches  or  besets  the  house  or  other  place  whore  such  other  person 


24 


ENGLISH   STATUTES 


[INTROD. 


resides,  or  works,  or  carries  on  business,  or  happens  to  be,  or  the 
approach  to  such  house  or  place;  or, 
5.   Follows  such  other  person  vnth  two  or  more  other  persons  in  a  dis- 
orderly manner  in  or  through  any  street  or  road, 
shall,  on  conviction  thereof  by  a  court  of  summary  jurisdiction,  or  on  in- 
dictment as  hereinafter  mentioned,  be  liable  either  to  pay  a  penalty  not 
exceeding  twenty  pounds,  or  to  be  imprisoned  for  a  term  not  exceeding  three 
months,  with  or  without  hard  labour. 

Attending  at  or  near  the  house  or  place  where  a  person  resides,  or  works, 
or  carries  on  business,  or  happens  to  be,  or  the  approach  to  such  house  or 
place,  in  order  merely  to  obtain  or  communicate  information,  shall  not  be 
deemed  a  watching  or  besetting  within  the  meaning  of  this  section. 


AmendmeTit   of 
law  of  con- 
spiracy in  the 
case  of  trade 
disputes. 
38  &  39  Vict, 
c.  86. 

Peaceful 
picketing. 


Removal  of 
liability  for 
interfering 
with  another 
person's  busi- 
ness, &c. 

Prohibition  of 
actions  of  tort 
against  trade 
unions. 


34  &  35  Vict, 
c.  3J 


Trade  Disputes  Act,  1906  (6  Edward  VII,  c.  47)  ^ 

Section  1.  The  following  paragraph  shall  be  added  as  a  new  paragraph 
after  the  first  paragraph  of  section  three  of  the  Conspiracy  and  Protection 
of  Property  Act,  1875:  — 

"An  act  done  in  pursuance  of  an  agreement  or  combination  by  two  or 
more  persons  shall,  if  done  in  contemplation  or  furtherance  of  a  trade  dis- 
pute, not  be  actionable  unless  the  act,  if  done  without  anj'  such  agreement 
or  combination,  would  be  actionable." 

Section  2.  (1)  It  shall  be  lawful  for  one  or  more  persons,  acting  on  their 
own  behalf  or  on  behalf  of  a  trade  union  or  of  an  individual  emploj'er  or  firm 
in  contemplation  or  furtherance  of  a  trade  dispute,  to  attend  at  or  near  a 
house  or  place  where  a  person  resides  or  works  or  carries  on  business  or  hap- 
pens to  be,  if  the.v  so  attend  merely  for  the  purpose  of  peacefulh'  obtaining 
or  communicating  information,  or  of  peacefully  persuading  any  person  to 
work  or  abstain  from  working. 

(2)  Section  seven  of  the  Conspiracy  and  Protection  of  Property  Act, 
1875,  is  hereby  repealed  from  "attending  at  or  near"  to  the  end  of  the  section. 

Section  3.  An  act  done  by  a  person  in  contemplation  or  furtherance 
of  a  trade  dispute  shall  not  be  actionable  on  the  ground  only  that  it  induces 
some  other  person  to  break  a  contract  of  employment  or  that  it  is  an  inter- 
ference with  the  trade,  business,  or  employment  of  some  other  person,  or 
with  the  right  of  some  other  person  to  dispose  of  his  capital  or  his  labour  as 
he  wills. 

Section  4.  (1)  An  action  against  a  trade  union,  whether  of  workmen 
or  masters,  or  against  any  members  or  officials  thereof  on  behalf  of  them- 
selves and  all  other  members  of  the  trade  union  in  respect  of  any  tortious 
act  alleged  to  have  been  committed  by  or  on  behalf  of  the  trade  union,  shall 
not  be  entertained  by  any  court. 

(2)  Nothing  in  this  section  shall  affect  the  liability  of  the  trustees  of  a 
trade  union  to  he  sued  in  the  events  provided  for  by  the  Trades  Union  Act, 
1871,  section  nine,  except  in  respect  of  any  tortious  act  committed  l)y  or  on 
behalf  of  the  union  in  contciiiplation  or  in  furtherance  of  a  trade  dispute. 

>  Son  W.  M.  Coldart,  The  Prosont  Law  of  Trade  Disputes  and  Trade  Unions, 
The  Polit.  (iuart.  No.  2  (May,  1014),  pp.  17-61;  Wchh,  History  of  Trade  Union- 
iHm  ri020  ed.),  pp.  (304-608;  Dicey,  Law  and  Opiinon  in  England  (2d  ed,,  1919). 
pp.  xliv  ct  seq. 


SECT.  II]  NINETEENTH   CENTURY   LEGISLATION  25 

Section  5.  ...  (3)  In  this  Act  and  in  tlic  Conspiracy  and  Protection 
of  Property  Act,  1K75,  the  expression  "trade  dispute"  means  any  dispute 
between  employers  and  workmen,  or  between  workmen  and  workmen, 
which  is  connected  with  the  employment  or  non-(!mplo\nnent,  or  the  terniH 
of  the  employment,  or  with  the  conditions  of  labour,  of  any  person,  and  the 
expression  "workmen"  means  all  jx-rsons  employed  in  trade  or  industry, 
whether  or  not  in  the  employment  of  the  emjjloycr  with  whom  a  tnide  dis- 
pute arises:  and,  in  section  three  of  the  last-mentioned  Act,  the  words  "be- 
tween employers  and  workmen"  shall  be  repealed. 

Trade  Union  Act,  1913  (2  &  3  George  V,  c.  30;  ^ 

77(/.s-  Art,  tr/iir/i  is  loo  Icnyl/iij  to  fjiialt ,  iimridis  Ihdl  a  trade  union  shall  have 
power  to  apply  its  futid.s,  without  restriction,  for  any  lawful  ofjjects  or  purposes 
(other  than  political  objects)  for  the  time  being  authorized  under  its  constitution. 

It  further  proriiles  that  no  trade  xinion  shall  apply  its  funds  for  ]>olitical 
objects  except  wider  the  conditions,  first  that  a  resolution  in  favour  of  political 
objects  haa  been  passed  by  a  secret  ballot,  and  secondly,  that  every  mcml>er  who 
objects  to  contrihuting  to  such  ofjects  shall  be  entitled  to  claim,  exemption.  But 
if  these  conditions  are  satisfied  every  trade  union  is  now  empowered  to  form  a 
political  fund,  and  to  apply  such  fund  to  political  purposes.^  —  Ed. 

»  See  as  to  the  Trade  Union  Act  of  1013,  W.  M.  Geldart,  The  Present  Law  of 
Trade  Disputes  anfi  Trade  Unions,  The  Political  Quarterly,  No.  2  (May,  1914), 
pp.  17  et  set/.;  Webb,  History  of  Trade  Unionism  (1920  ed.),  pp.  631-034.  To 
understand  the  .siKnificaiicc  of  the  Trade  Union  .\ct  of  1913,  one  must  read  the 
decision  in  .\inalgainateil  Soc.  of  Ry.  Servants  c.  O.sbornc,  [1910|  .\.  C.  87. 

-  Section  1  of  the  .Vet  provides  that  "the  fact  that  a  combination  has  under 
its  con.stitution  objects  or  powers  other  than  .statutory  objects  within  the  mean- 
ing of  this  .\ct  .shall  not  prevent  the  coml)inati<)n  being  a  trade  union  for  the 
purpo.scs  of  the  Trade  Union  .Vets,  1871  to  190G,  so  long  as  the  combination  is  a 
trade  union  as  defined  by  this  .Vet,  and,  .subject  to  the  provisions  of  this  .Vet,  as 
to  the  furtherance  of  political  objects,  any  .such  trade  union  shall  have  power  to 
apply  the  funds  of  the  union  for  any  lawful  objects  or  purpo.ses  for  the  time  being 
authorized  under  its  con.stitution." 

Section  2  substitutes  a  new  definition  of  a  trade  union  for  the  definition  con- 
tained in  the  .Vet  of  187(5;  and  it  provides  that  the  Registrar's  certificate  to  the 
efTect  that  a  lK)dy  is  registered  as  a  trade  union,  and  a  certificate  given  by  him  to 
the  efTect  that  an  unregisterec'  body  is  a  trade  union,  shall  be  conclusive  that  the 
body  in  question  is  a  trade  union. 

Section  3  reads,  in  part,  as  follows:  "(1)  The  funds  of  a  trade  union  shall  not 
be  applied,  either  directly  or  in  conjunction  with  any  other  trade  union,  associa- 
tion, or  body,  or  otherwi.se  indirectly,  in  the  furtherance  of  the  political  objects 
to  which  this  section  applies  (without  prejudice  to  the  furtherance  of  any  other 
j)olitical  objects),  unless  the  furtlierance  of  those  objects  has  been  approved  as 
an  ol)ject  of  the  union  by  a  resolution  for  the  time  being  in  force  pa.s.sed  on  a 
ballot  of  the  members  of  the  union  taken  in  accordance  with  this  Act  for  the  pur- 
pose iiy  a  majority  of  the  members  voting;  and  where  such  a  resolution  is  in  force, 
unle.>^s  rules,  to  i)e  a])|)roved,  whether  the  union  is  registered  or  not,  by  the  Regis- 
trar of  Friendly  Societies,  are  in  force  providing  — 

(a)  That  any  payments  in  the  furtherance  of  tho.se  objects  are  to  l>c  made 
out  of  a  .separate  fimd  (in  this  .Vet  referre<l  to  as  the  [political  fund  of 
the  union),  and  for  the  exemption  in  accordance  with  this  .Vet  of  any 
member  of  the  unioti  from  any  obligation  to  contribute  to  such  a  fund 
if  he  gives  notice  in  accordance  with  this  Act  that  he  objects  to  con- 
tribute; and 


26  ENGLISH  STATUTES  [INTROD. 

(6)  That  a  member  who  is  exempt  from  the  obHgation  to  contribute  to  the 
political  fund  of  the  union  shall  not  be  excluded  from  anj-  benefits  of 
the  union,  or  placed  in  anj^  respect  either  directly  or  indirectly  under 
any  disabilit}^  or  at  any  disadvantage  as  compared  with  other  members 
of  the  union  (except  in  relation  to  the  control  or  management  of  the 
political  fund)  by  reason  of  his  being  so  exempt,  and  that  contribution 
to  the  political  fund  of  the  union  shall  not  be  made  a  condition  for 
admission  to  the  union.  .  .  . 

(3)  The  political  objects  to  which  this  section  applies  are  the  expenditure  of 
money  — 

(a)  on  the  payment  of  any  expenses  incurred  either  directly  or  indirectly  by 
a  candidate  or  prospective  candidate  for  election  to  Parliament  or  to 
any  pubUc  office,  before,  during,  or  after  the  election  in  connexion  with 
his  candidature  or  election;  or 

(6)  on  the  holding  of  any  meeting  or  the  distribution  of  any  literature  or 
documents  in  support  of  any  such  candidate  or  prospective  candidate; 
or 

(c)  on  the  maintenance  of  any  person  who  is  a  member  of  Parliament  or  who 

holds  a  public  office;  or 

(d)  in  connexion  with  the  registration  of  electors  or  the  selection  of  a  can- 

didate for  Parliament  or  any  public  office;  or 

(e)  on  the  holding  of  political  meetings  of  any  kind,  or  on  the  distribution  of 

political  literature  or  political  documents  of  any  kind,  unless  the  main 
purpose  of  the  meetings  or  of  the  distribution  of  the  literature  or  docu- 
ments is  the  furtherance  of  statutory  objects  within  the  meaning  of  this 
Act."  .  .  . 


PA1{T  I 

(  llAl'TKK   1 
EARLY  ENGLISTI  STA'PrTORV  RKCiT'T.ATTOXS 

PRESENTMENTS  MAUK  HKl'olU':    Till':  JISTICKS 
UF  LABUl'REUS 

Hundred  of  Chelmsfoud,  1351 

Assize  Roll,  2G7,  mm.  1,  S  ' 

The  twelve  [jmois]  present  that  Arnulph  lo  Hiorde  of  Maldon,  late 
servant  of  Jolin  Dodehroke  from  Michaehuiis,  24  Edwartl  III,  until 
Michaehnas  next  following,  25  Edward  111,  for  one  year  and  for  a 
(juartcr  of  a  year  next  following  and  for  the  whole  of  that  time,  the 
said  Arnulph  took  a  (juarter  of  wheat  for  twelve  weeks  and  5s.  a  year 
for  hi.s  sti|K'nd.  Further,  he  took  from  the  feast  of  St.  Peter's  Chains 
until  Christmas  in  the  same  time  lO.s-.  beyond  that  whieh  he  took 
above;  and  hereupon  the  said  Arnulph  withdrew  from  his  service 
before  the  end  of  the  term,  to  the  damage  of  the  said  John  of  40s., 
against  the  Statute,  etc.   .   .   . 

Trespass.  Further,  they  present  that  Robert  Grys  of  Danbury, 
potter,  makes  brass  pots  and  sells  them  at  threefold  the  price  which 
he  used  [to  take],  against  the  Statute,  etc.,  in  oppression  of  the  people. 

Trespass.  Further,  they  say  that  John  Sextayn  the  younger,  tailor, 
John  Banc^strat,  tailor,  Roger  atte  Tye  of  C.reat  Haddow,  take  salaries 
for  their  labours  from  divers  folk  against  the  Statute,  etc.,  and  this 
threefold  that  which  they  used  to  take. 

Trespass.  Further,  they  say  that  William  Denk,  servant  of  Geoffrey 
le  Smyth,  took  from  the  said  CJeoiTrey  2().s'.  a  year,  and  is  at  his  tal)le, 
anil  was  sworn  before  John  de  Sutton  and  his  f(41ows  to  serve  accord- 
ing to  the  Statute,  etc.,  where  he  shouki  not  take  but  8s.,  etc.  .  .  . 

Trespass.  Further,  they  present  that  Richard  Smyth  of  Great 
Baddow  conunonly  takes  for  his  work  dou])le  that  which  ho  usetl  to 
take,  against  the  Statute. 

Trespass.  Further,  they  present  that  John  Plukkero.so,  William 
Smyth  of  Danbury  and  William  Molt,  shoemakei-s,  of  Great  BadiU)W, 
make  shoes  and  sell  them  at  almost  d()ui)le  the  price  which  they  used 
[to  take],  against  the  Statute,  etc.,  in  oppression  of  the  peopU*. 

'  Printo<l  in  Columbia  t'niversity  f'tudios  in  ITistort',  Economics,  and  Public 
Law,  vol  32,  appondix,  j).  KiU*.  The  translation  lu-ro  given  is  taken  from  that 
printed  in  A.  K.  Bland,  I'nglish  Kconomic  History,  Select  Document.-*,  p.  107. 


28  ENGLISH   STATUTORY   REGULATIONS  [CHAP.  I 

ANONYMOUS 

Common  Pleas.    1376 
Year  Book,  50  Edw.  Ill,  fol.  13,  pi.  3 

One  Henr}''  B.,  Parson  of  B,  brings  a  writ  on  the  Statute  of  Labourers 
against  Thomas  F.,  a  chaplain,  and  counted  how  he  made  covenant 
with  him  to  ssrve  in  the  office  of  seneschal,  and  to  be  his  parochial 
chaplain  for  a  certain  time,  etc.  And  that  he  was  in  his  service,  and 
departed  without  reasonable  cause. 

Hanimer  [counsel].  As  to  that  which  he  has  counted  that  we  made 
covenant  to  be  his  seneschal  and  that  we  were  in  his  service  of  sen- 
eschal we  sa}^  that  we  never  made  such  a  covenant  with  him.     Ready. 

The  others  to  the  contrary. 

Hanimer  [counsel,  continuing].  And  as  to  what  he  has  surmised, 
that  we  made  covenant  with  him  to  be  parochial  chaplain  and  that 
we  departed  out  of  his  service,  we  apprehend  that  the  Statute  was  not 
to  any  other  intent  than  as  to  those  who  are  labourers  artificers;  and 
this  is  neither  one  nor  other,  but  the  servant  of  God;  so  he  is  not 
bound  by  the  Statute;  so  we  apprehend  not  that  this  action  lies  against 
us;  for  every  one  of  the  other  sorts  of  servants  (chescun  auter  servant), 
if  he  be  in  health  and  bodily  power,  he  is  bound  to  do  his  service,  and 
his  work  from  day  to  day;  but  the  chaplain  is  not  bound  to  sing  every 
day,  if  he  will  not,  for  divers  causes  which  lie  in  his  conscience  (i.  e.,  to 
judge  of  the  sufficiency  of  which  causes  is  left  to  his  conscience);  and 
so  he  may  cease  to  sing  for  one  day  or  two,  so  that  he  is  in  quite  a 
different  degree  from  a  labourer  or  artific(>r. 

Clopton  [counsel].  This  man,  who  is  his  parochial  chaplain,  may 
more  readily  be  adjudged  a  labourer  than  another  chaplain  who  is  to 
serve  only  as  private  priest  (ou  parson  singuler).  For  a  parochial 
priest  has  many  other  things  to  do  besides  to  sing  the  mass  and  other 
divine  servicers;  for  it  behooves  him  to  visit  the  sick  of  the  parish  in 
their  houses,  to  administer  to  them  the  rites  of  Holy  Church,  and  so 
it  behooves  that  parsons  of  the  Holy  Church  should  have  their  need- 
ful assistance,  for  they  cannot  do  it  themselves.  Wherefore  it  seems 
in  divers  respects  that  he  is  as  nuich  within  the  Statute  as  any  other 
person  of  th(^  p(H)ple. 

Belknap  [J.].'  This  was  a  case  and  the  matter  was  adjourned,  in 
the  other  term,  till  now;  and  it  is  our  0))inion,  and  that  of  our  fellows 
of  the  King's  Bench  also,  that  he  is  not  bound  by  the  Statute  as  an- 
other person  is;  wherefore  as  to  this  point  we  dismiss  you;  and,  as  to 
the  remainder  on  whicli  you  are  at  issue,  keep  your  day,  etc.^ 

'   Ilohort  Bilkiinp  or  BcHlkimp,  Cliief  Justice  of  Coiumoii  Pleas,  Oct()l)er  10, 

i:j74. 

*  The  latter  part  of  the  case  will  Ije  found  translated  in  2  I'lllis  A:  l{lackl)urn, 
2<).{  note. 


CHAP.  I]  ENGLISH    STATITORY    REGILATIOXS  29 

presentmi:n'I' 

COUKT   LeET   <JF    Sol  TIIAMI-ION.       1576 

Court  Led  Records  of  Southampton,'  Vol.  I,  Part  I,  p.  137 

It.  WO  p^'scnt  that  the  C'ohlcrs  of  this  townc  Do  v.s.se  to  incnd  & 
Col)l)l('  int'iis  shcwcs  w'''  naught ic  sHttin^^c  Icthcr  w*=''  is  to  the  t^n-iit*; 
cliardjics  of  the  Iiihaliitaiits  of  tliis  touiir  foi-  that  yIT  they  chd  vssc  «.\: 
occupie  good  ct  well  tuned  lether  yt  wolde  he  to  tlieiie  most  protTyt  «ic 
hotf'  s"vice  w"**  we  dess'"""  may  be  amendid,  e.\cepting  sudgen  tlie 
cohler. 

PRESENTMENT 
Court  Leet  of  Southampton.     1577 

Court  Leet  Records  of  Southampton,'  Vol.  I,  Part  1,  p.  101 

Item  we  present  that  concerning  the  statute  of  apparrell  we  fynde 
waiter  earle  to  ware  gardes  of  velvat  on  his  hosse,  John  delylls  wyffe 
a  peticot  gardixl  [adoined,  trimmed]  w"'  vellat,  martyne  howes  a 
gowne  of  norwyg  woreted  w'^  a  brode  byllyment  [habiliment]  Lac(! 

of  sylke  &  his  wyffe  a  hatte  of  taffitie  Lynid  w'^'  vellat brough- 

ton  a  hatt  Lynid  w"'  vellat,  John  goddardes  wyffe  a  hatt  of  tafhtie 
Lynid  w"'  vellat  John  mylls  wyfTe  a  cape  of  vellat  ct  gardes  [trim- 
mings] in  her  gouiie,  John  hoptons  wj-ffc  a  taffytie  hatt,  Roger  mylls 
wyffe  a  hatt  of  vellat,  Andro  harris  a  cloke  Lynid  w^^  tufte  tathtie, 
Jolm  markes  a  cloke  w'^  cape  of  vellat  w^**  divers  othere  as  we  sup- 
pose offendeth  the  statutes  in  that  l)ehalfe  p'^'vidid,  the  consideracon 
wherof  we  refer  vuto  yo'  worshipps. 


KING  V.  JUSTICES  OF  KENT 

King's  Bench.     1811 

14  East,  395 

A  petition  was  presented  to  the  justices  of  Kent  at  their  general 
(luarter-sessions  in  Januaiy  last,  from  certain  persons  stating  them- 
selves to  be  millers  in  that  county,  and  ''within  the  description  of 
millers  mentioned  in  the  stat.  5  Eliz.  c.  4  ";  which  petition  stated  in 
-substance  that  the  wages  paid  to  them  for  many  years  past  by  their 
resjxH'tive  (Muployei-s  never  exceeded  and  often  fell  short  of  one  guinea 
a  week:  that  their  day-work  was  long,  and  sometimes  they  were  also 
obliged  to  work  in  the  night ;  and  that  by  rea.son  of  the  great  incroa.se 
which  had  of  late  years  taken  place  in  th(>  piic(>  of  the  necessaries  of 
hfe,  their  wages  were  become  wholly  inadeciuate  to  their  supjxjrt  anil 

'  Published  bv  the  Southampton  Record  Society,  edited  by  F.  J.  C.  Heam- 
filiaw,  M„\..  U.'M^  :ind  D.  .M.  IKan.sliaw. 


30  ENGLISH   STATUTORY   REGULATIONS  [CH.\P.  I 

maintenance;  and  that  not  less  than  4s.  Qd.  a  day,  with  a  proportionate 
allowance  for  extra  work,  would  suffice  for  that  purpose:  and  con- 
cluding with  a  prayer  (in  the  relative  terms  of  the  section  of  the  15th 
section  of  the  stat.  5  Eliz.  c.  4)  "that  you  the  said  justices  or  the  more 
part  of  3'ou,  and  the  said  sheriff  (if  you  the  said  sheriff  conveniently 
may,)  will,  at  the  general  sessions  first  to  be  holden  and  kept  in  andl 
for  the  said  county  after  Easter  now  next  ensuing,  or  at  some  tune 
convenient  within  six  weeks  next  following  the  said  feast  of  Easter, 
assemble  yourselves  together;  and  being  so  assembled,  and  calling 
unto  you  such  discreet  and  grave  persons  of  the  said  county  as  you 
shall  think  meet;  and  conferring  together  respecting  the  plenty  or 
scarcity  of  the  time,  and  other  circumstances  necessarily  to  be  con- 
sidered; that  you  will  limit  unto  and  appoint  the  wages  of  millers  in 
the  county  aforesaid,  according  to  the  form  of  the  statute  in  that  case 
made  and  provided." 

This  application  of  the  journe5Tnen  millers  was  supported  by 
counsel  at  the  last  Easter  sessions;  and  was  then  opposed  by  counsel 
on  behalf  of  the  master  millers,  principally,  as  it  seemed,  on  the 
ground  that  the  statute  of  Elizabeth  was  confined,  if  not  in  the  terms 
of  it,  yet  by  construction  and  in  practice,  to  the  wages  of  labourers  in 
husbandry;  and  this  as  well  since  the  act  of  the  IJac.  1,  c.  6  as  before. 
And  the  sessions  finally  refused  to  act  upon  the  petition,  upon  the 
ground,  as  it  now  appeared  to  the  court,  that  they  had  no  jurisdiction 
to  interfere  in  the  case  of  these  petitioners ;  and  not  upon  the  result  of 
a  discretionary  judgment  foraied  upon  the  subject-matter  of  the 
petition. 

Whereupon  The  Attorney-General  (and  Gurney)  applied  in  the  last 
term  for  a  mandamus  to  the  justices  of  Kent,  "commanding  them,, 
together  with  the  sheriff  of  the  same  county,  if  conveniently  he  may, 
pursuant  to  the  statute  in  such  case  made  and  provided,  to  hear  and 
detei-mine  upon  the  application  of  certain  millers  of  the  said  county, 
for  them  the  said  keepers  of  the  peace  and  justices  to  limit,  rate,  and 
appoint  the  wages  of  millers  in  the  said  county."  And  the  court  were 
referred  to  the  following  cases  upon  the  subject:  Snape  v.  Dowse. 
Comb.  3.  R.  V.  Champion,  Carth.  156.  Q.  v.  London,  2  Salk.  442, 
3  Salk.  260,  and  6  Mod.  204.  R.  v.  Gregory,  2  Salk.  484.  Q.  v.  Cor- 
bett,  3  Salk.  261.  R.  v.  Pope,  5  Mod.  419.  Q.  v.  Gouche,  2  Ld.  Raym. 
820.  R.  V.  Helling,  1  Stra.  8,  and  Shergold  v.  Holloway,  2  Stra.  1002; 
and  4  Com.  Dig.  554,  tit.  Justices  of  the  Peace  (B),  60,  etc. 

Lord  Ellenbouougii,  C.  J.,  then  said  that  if  the  justices  had  re- 
jected the  application  in  the  exercise  of  the  discretion  vested  in  them 
by  the  legislature,  this  Court  would  not  interfere;  but  if  they  had 
rejected  it  on  the  ground  now  stated,  that  they  had  no  power  to 
grant  it,  the  court  would  interfere  so  far  as  to  set  the  jurisdiction 
of  the  magistrates  in  motion,  by  directing  them  to  hear  and  deter- 
mine upon  the  application.  The  court  therefore  granted  a  rule  to 
shew  cause,  etc. 


CHAP,  I]  ENGLISH    STATUTORY    REGULATIONS  31 

Parix,  Tdddtj,  and  Kerens,  now  slicwcd  cause  a^iiinst  tlu*  rule.  .    .    . 

Principally  thoy  relied  on  several  cases,  where  it  ha<l  been  held 
that  the  stat.  5  Eliz.  only  extended  to  ^;ive  the  justices  authority  to 
settle  the  wages  of  servants  in  husbandry;  within  which  descripti<jn 
the  present  applicants  did  not  bring  tliemselves.  And  they  added 
that  the  [jolicy  of  the  state  was  against  the  extension  of  such  a  power, 
which  i)lace(|  the  ignorant  an<l  the  idle  upon  a  level  with  the  expert 
and  industrious.  The  cases  referred  to  were  The  King  r.  (Iregory,^ 
The  Queen  v.  London,^  The  King  v.  The  Inhal>itants  of  Halcott,'  and 
The  King  v.  Devall,  3  Keb.  020.  [Loud  Kllenhouoioh,  ('.  J.  It 
might  have  been  d<)ul)tful  upon  the  stat.  of  the  5  Mliz.  c.  4:  but  what 
doubt  can  there  be  a.s  to  the  general  power  of  the  justices  in  this  mat- 
ter upon  the  stat.  1,  Jac.  1,  c.  0.]  They  admitted  the  generality,  of  the 
words  in  the  statute  of  James  extending  the  power  of  the  ju.stices  to 
athx  the  rates  of  wages  of  any  labourers  and  workmen  whatsoever: 
but  observetl,  notwithstanding,  that  no  notice  ajjpears  to  have  Ix-en 
taken  of  it  in  any  of  the  subsequent  cases;  and  suggested  that  as  the 
act  was  only  temporary  in  the  first  instance,  and  the  last  continuance 
of  it  was  by  the  stat.  10  Car.  1,  c.  4,  s.  2,  there  might  from  the  ix'riod 
at  which  the  last  act  pa.ssed,  have  been  a  doui)t  whether  the  original 
statute  had  liccn  continued  by  a  competent  authority. 

Lord  Ellenbouough,  C.  J.  I  cannot  sec  what  ground  there  can 
be  for  the  doubt  suggested  as  to  the  efficacy  of  the  stat.  16  Car.  1, 
c.  4,  s.  2,  for  continuing  the  stat.  1,  Jac.  1.  There  are  several  statutes 
placet!  subsequent  to  this  in  the  printed  statute  books,  of  the  force  of 
which  there  is  no  doubt;  such  as  the  statute  for  shortening  Michael- 
mas term,  and  the  statute  for  the  abolition  of  the  court  of  Star  Cham- 
ber: and  taking  the  statute  of  James  I  to  be  a  subsisting  law,  the 
words  of  it  arc  large  enough  to  include  the  persons  now  applying. 
We  do  not,  however,  by  granting  this  mandamus,  at  all  interfere  with 
the  exercise  of  that  discretion  which  the  legislature  meant  to  confide 
to  the  justices  of  the  peace  in  sessions:  we  only  say  that  they  have 
a  discretion  to  exerci.se;  and  therefore  they  nuist  hear  the  application: 
but,  having  heard  it,  it  rests  entirely  with  them  to  act  or  not  upon  it 
as  they  think  lit. 

Grose,  J.,  agreed. 

Le  Blanc,  J.  We  only  .say  that  justices  have  authority  to  act  upon 
the  subject-matter  of  the  application;  and  that  they  are  to  hear  it, 
and  then  to  determine  whether  in  their  discretion  they  think  proper 
to  fix  a  rate  of  wages. 

'  Ilil.  10  \V.  3,  2  Sulk.  4S1,  .5. 

'  T.  3  .Vnn,  ib.  442;  and  6  Mod.  204.  Tho.>^o  wore  cases  of  orders  to  enforce  the 
payment  of  wages  to  individual  lat)()urers. 

'  6  Term  Hep.  .5S3.  That  wa.'*  a  (pie.stion  of  settlement,  ami  turned  on  the 
authority  of  an  order  of  a  ju.stice  for  di.sch;irginK  a  servant  (not  stated  to  Ih^  in 
husbandry)  from  her  ma^jtcr's  service. 


Z2  ENGLISH   STATUTORY   REGULATIONS  [CHAP.  I 

Bayley,  J.  We  tell  the  justices  that  thej^  have  authorit}-  by  law 
to  settle  a  rate  of  wages  for  the  persons  applying:  but  we  do  not  say 
that  they  are  to  exercise  that  authority  in  this  instance.  Let  them 
hear  the  application. 

Rule  absolute} 

1  The  Justices  of  Kent,  as  I  was  afterwards  informed,  heard  the  application,  but 
refused  to  make  any  rate. 


CIIAl'TKU   II 
LEGAIJT^'  OV  (OMBTXA'ITOX 

Section    1.     Uiijld  of  Association 

"Tho  point  to  note  is  tluit  at  tiio  present  day  tlie  exereise  [of  the 
rijilit  of  association]  raises  tliffieultios  in  every  civilized  country.  In 
i'lnj^iantl,  as  elsewhere,  trade  unions  and  strikes,  or  fcderatioiLS  of 
employers  and  lock-outs;  in  Ireland,  the  boycott irijj;  hy  Icajrues  and 
societies  of  an\'  landlord,  tenant,  trailer,  or  workman,  Ix^ld  enough  to 
disobey  their  behests  or  break  their  laws;  in  the  United  States,  the 
efforts  of  mercantile  trusts  to  create  for  themselves  huge  monopolies; 
in  France,  the  real  or  alleged  n(?cessity  of  stringent  legislation  in  order 
to  keep  religious  conununities  {conijregdliunH  rcligicuses)  under  the 
control  of  the  State  —  in  almost  every  country,  in  short,  some  forms 
of  association  force  upon  public  attention  the  practical  difficulty  of  so 
regulating  the  right  of  association  that  its  exercise  may  neither  trench 
upon  each  citizen's  individual  InHulom  nor  sliake  the  supreme  author- 
ity of  the  State.  The  pr()l)lem  to  be  solved,  either  as  a  matter  of  theory 
or  as  a  matter  of  practical  necessity,  is  at  bottom  always  and  every- 
where the  same.  How  can  the  right  of  combined  action  be  curtailed 
without  depriving  individual  libeity  of  half  its  value;  how  can  it  be 
left  unrestricted  without  destroying  eitlier  the  lil)erty  of  indivitlual 
citizens,  or  the  power  of  the  Government?  To  see  that  this  problem 
at  tho  present  day  presents  itself  everywhere,  and  has  nowhere  re- 
ceived a  quite  satisfactory  solution,  is  of  importance."  Dicey,  Law 
and  Pul)lie  Opinion  in  England  (2d  ed.),  pp.  4G7-4GS.' 

REX  V.  JOUKXKVMKX    TAVLOKS  OF  CAMBRIDGE 

Ki.ng's  Bench.     1721 

8  Modern,  10 

One  Wise,  and  several  other  journeymen-tajdoi-s,  of  or  in  the  town 
of  Cami)ridge,  were  indicteil  for  a  conspiracy  amongst  themselves  to 
raise  their  wages,  and  were  found  guilty. 

It  was  moviMJ  in  arrest  of  judgment  upon  s(>veial  errors  in  the 
record,   .   .   . 

Tiiirdi>'.-'    Xo  criinr  appeai-s  upon  the  face  of  this  indictment,  for  it 

*  In  regard  to  tho  Riirht  of  Association,  soo  Dicey,  Law  and  Opinion  ('2d  oi\.) 
(1910),  })p.  lo3-ir)S;  K)7— 17t>:  Dunuit.  Le  droit  social  et  le  droit  iudividuel, 
pp.  1()7-14.S.    See  also  the  hihhoirraphy  in  Diccv,  p.  KiT. 

*  The  first,  second,  and  ft)urlli  oljjections  are  omitted.  —  Ed. 

33 


A' 


34  LEGALITY   OF   COMBINATION  [CHAP.  II 

only  charges  them  with  a  conspiracy  and  refusal  to  work  at  so  much 
per  diem,  whereas  they  are  not  obliged  to  work  at  all  by  the  day  but  by 
the  year,  by  5  Eliz.  c.  4. 

It  was  answered,  that  the  refusal  to  work  was  not  the  crmie,  but  the 
conspiracy  to  raise  the  wages. 

The  Court.  The  indictment,  it  is  true,  sets  forth  that  the  defend- 
ants refused  to  work  under  the  wages  which  they  demanded;  but  al- 
though these  might  be  more  than  is  directed  by  the  statute,  j^et  it  is 
not  for  the  refusing  to  work  but  for  conspiring  that  they  are  indicted, 
and  a  conspiracy  of  any  kind  is  illegal  altiiough  the  matter  about 
which  ffi^ey  conspired  might  have  been  lawful  for  them,  or  any  of 
them  to  do,  if  they  had  not  conspired  to  do  it,  as  appears  in  the  case 
of  The  Tubwomen  v.  The  Brewers  of  London.  .  .  . 

Fifthly.  This  indictment  ought  to  conclude  contra  formam  statuti; 
for  by  the  late  statute  7  Geo.  I,  c.  13,  journeymen-taylors  are  prohib- 
ited to  enter  into  any  contract  or  agreement  for  advancing  their  wages, 
etc.  And  the  statute  of  2  &  3  Edw.  VI,  c.  15,  makes  such  persons 
criminal. 

It  was  answered  that  the  omission  in  not  concluding  this  indictment 
contra  jormam  statuti  is  not  material,  because  it  is  for  a  conspiracy, 
which  is  an  offence  at  common  law.  It  is  true,  the  indictment  sets 
forth  that  the  defendants  refused  to  work  under  such  rates,  which  were 
more  than  enjoined  by  the  statute,  for  that  is  only  two  shillings  a 
day;  but  yet  these  words  will  not  bring  the  offence,  for  which  the 
defendants  are  indicted,  to  be  within  that  statute,  because  it  is  not  the 
denial  to  work  except  for  more  wages  than  is  allowed  by  the  statute, 
bat  it  is  for  a  conspiracy  to  raise  their  wages,  for  which  these  defend- 
ants are  indicted.  It  is  true  it  does  not  appear  by  the  record  that  the 
wages  demanded  were  excessive,  but  that  is  not  material,  because  it 
may  be  given  in  evidence. 

The  Court.  This  indictment  need  not  conclude  contra  formam 
statuti,  because  it  is  for  a  conspiracy,  which  is  an  offence  at  common 
law. 

So  the  judgment  was  confirmed  by  the  whole  court  quod  capiantur. 


REX  V.  ECCLES 

King's  Bench.     1783 

^     ^  Leach  C.  C.  274 

\[  f^  '^'hc  defendant  and  six  other  persons  were  convicted  at  the  Sum- 

'  mer  Assizes  for  Lancaster  in  the  year  1783,  on  an  indictment,  con- 

taining two  counts,  for  conspiring  to  impoverish  one  H.  Booth  a 
,  .  taylor,  and  to  prevent  liini,  l)y  indirect  means,  from  carrying  on  his 

trade.    The  indictment  had  been  found  at  the  (iuartcr  Session  for  the 
town  of  Lancaster,  and  removed  by  certiorari  into  the  King's  Bench. 


.>-^ 


■> 


W 


L  1- 


SECT.  I]  RIGHT   OF   ASSOCIATION  35 

The  firsl  count  stated,  "  that  the  defendant  togetlicr  with 
divers  other  persons  to  the  Jurors  unknown,  being  jxTsons  of  ill 
name  and  fame,  and  of  (hshonosf  convci-sation,  and  wickedly 
devisinjj;  and  injeiidin^^^unjujstly,  unlawfully  and  hy  indirect  means 
to  nnpoverish  one  H.  Booth,  and  to  deprive  and  hinder  him  from 
using  and  exercising  the  trade  and  business  of  a  t  ay  lor,  which  he 
used  and  exercised,  on  the  2Sth  day  of  November  in  the  23(1  year, 
etc.,  at  Liver{)ool,  within  the  juiisdicti(jn  oi  the  court  of  (Quarter 
Sessions  there,  fraudulently,  maliciously  and  unlawfully  did  con- 
fwleiate,  conspire,  combine,  and  agree  among  themselves,  by 
wrongful,  and  indirect  means  to  impoverish  the  said  II.  Booth,  and 
to  deprive  and  hinder  him  from  following  and  exercising  his  af(jre- 
said  business  of  a  tayloi-  in  Liverpool  aforesaid,  and  within  the 
jurisdiction  aforesaid;  and  that  the  said  defendants,  together  with 
the  said  other  persons  to  the  Jurors  unknown,  in  pursuance  of  and 
according  to  the  unlawful  conspiracy,  combination,  and  agreement  ^^ 
aforesaid,  on  the  saitl  28th  day  of  November,  at  Liverpo(;l  afore-  fl^-^^ 
said,  and  within  the  jurisdiction  aforesaid,  indirectly,  unlawfully, 
maliciously,  and  unjustly  did  prevent  and  hinder  the  said  H.  Booth 
from  following  his  said  trade  or  business  at  Liverpool  aforesaid,  and 
within  the  jurisdiction  aforesaid;  and  thereby  did,  then  and  there, 
greatly  impoverish  the  said  II.  Booth;  to  the  great  damage  of  the 
said  H.  Booth;  to  the  evil  example,  etc.,  and  against  the  peace, 
etc."  The  second  count  stated  "  that  the  said  defendants,  to- 
gether with  divers  other  persons  to  the  Jurors  unknown,  on  the 
said  2Sth  day  of  NoviMuber  in  the  23tl  year  aforesaid,  at  Liverpool 
aforesaid,  antl  within  the  juristliction  aforesaid,  wickedly,  wrong- 
fully, unlawfully,  and  maliciou.sly,  did  confederate  together,  and 
conspire  and  agree  by  indirect  means  to  prejudice  and  impoverish 
the  said  H.  Booth,  and  to  prevent  and  hinder  him  the  said  H.  Booth 
from  using  and  excM-cising  his  aforesaid  tratle  or  business  of  a  taylor 
in  Liverpool  afon^said,  ami  within  the  jurisdiction  aforesaid,  to  the 
great  damage,  etc.,  in  contempt,  etc.,  to  the  evil,  etc.;  and  against 
the  peace,  etc." 

In  the  Michaelmas  Term  following,  the  defendants  were  l)rought 
up  to  receive  the  judgment  of  the  C'oui't;  but 

Chambre  and  Topping  moved  that  it  might  be  arrested. 
First.  The  indictment  only  contains  a  general  charge  of  con-  l[^^^^ 
spiracy.  It  ought  to  hav(>  stated  the  acts  that  were  conunitted  to 
impoverish  Booth,  and  prevent  him  from  carrying  on  his  traile,  in 
order  that  the  defendants  might  thereby  have  had  notice  of  the 
particular  cliuiges,  thej'  were  called  upon  to  answer,  and  that  the 
Court  might  sec  that  the  alleged  conspiracy  really  existed.  .  .  . 

Loud  Mansfikld  (without  hearing  the  otluM-  side).  The  con- 
spiracy, and  ihe  object  of  it  are  both  stated  in  the  imlictment,  but  it 
is  contemled  that  the  means  by  which  the  intended  mi.schief  wius 
effected,  ought  also  to  have  been  particularly  set  forth  as  in  the 


{^At^,^^ 


36  LEGALITY   OF   COMBINATION  [CHAP,  ir 

case  of  Rex  v.  Sterling  and  others,  but  this  is  certainly  not  necessary, 
for  the  offence  does  not  consist  in  doing  the  acts  by  which  the  mis- 
.  ,  chief  is  effected,  for  they  may  be  perfectly  indifferent,  but  in  con- 

i^A»a^wA^Dcv  kV  ^py'WS  with  a  view  to  effect  the  intended  mischief  by  any  means. 
»  ^  ^^^-^^  ^  rpi^g  illegal  combination  is  the  gist  of  the  offence,  persons  in  posses- 
f  f.  ,  ,  I  '  ,  1  .,1^,  ,A.  tv  gion  of  any  articles  of  trade  may  sell  them  at  such  prices  as  they 
individually  may  please,  but  if  they  confederate  and  agree  not  to  sell 
them  under  certain  prices,  it  is  conspiracy;  so  every  man  may  work 
at  what  price  he  pleases,  but  a  combination  not  to  work  under  cer- 
tain prices  is  an  indictable  offence.  As  to  the  second  objection,  the 
defendants  all  appeared;  for  upon  this  record  it  is  added  "and  they 
and  each  of  them  severally  say,  etc." 

WiLLES,  J.  All  the  cases  upon  this  subject  were  fully  considered 
in  the  case  of  Rex  i\  Kinnersley,  1  Stra.  193,  in  which  it  was  de- 
cided, that  in  an  indictment  for  a  conspiracy  it  is  not  necessary  to 
state  the  means  by  which  the  mischief  was  effected.^ 

BuLLER,  J.  The  indictment  states,  "that  the  defendants  intend- 
ing unlawfully  and  by  indirect  means  to  impoverish  the  prosecutor, 
unlawfully  did  conspire,"  etc.;  but  nothing  need  to  have  been  stated 
about  the  means,  for  the  means  are  matter  of  evidence  to  prove  the 
charge,  and  not  the  crime  itself.  The  indictment  therefore  rather 
states  too  much  than  too  little.  As  to  the  second  objection,  if  in  fact 
the  defendants  did  not  all  appear,  it  is  a  blameable  negligence  in  the 
clerks  of  the  office,  in  making  this  careless  entry,  and  the  remedy 
must  be  against  them. 

The  defendants  received  judgment  of  six  months'  imprisonment 
in  the  gaol  of  Liverpool.^ 

REX  V.  DIXON 

Cambridge  Assizes.     1834 

6  Car.  &  Payne,  601 

Indictment  on  the  stat.  57  Geo.  3,  c.  19,  s.  25,  for  becoming  mem- 
bers of  a  society,  the  members  whereof  bound  themselves  by  an  oath, 
in  consequence  of  becoming  members  of  the  said  society. 

'  See  Rex  v,  Armstrong  and  others,  1  Vent.  304. 

*  In  the  case  oi  Rex  v.  Mawhey,  ()  Term  Rep.  019,  decided  in  1706,  Grose,  J., 
in  the  course  of  his  opinion  said:  "  In  many  cases  an  agreemervt  to  do  a  certain 
th^ng  }mH  been  considered  as  the  subject  of  an  indictment  for  a  c()nsj)iracy,  though 
fne  same  act,  if  done  separately  by  each  indivichial  without  any  agreement  among 
them.seIve.s"would  not  have  been  illegal.  As  in  the  case  of  journeymen  conspiring 
to  rai.se  their  wages:  each  may  in.sist  on  raising  his  wages,  if  he  can;  but  if  several, 
meet  for  the  same  purpose,  it  is  illegal,  and  the  parties  may  be  indicted  for  a_ 
cmispiracy."     fp.  630.) 

How  the  English  Parliament  .sought  to  .solve  th(!  problem  of  the  right  of  a.s.so- 
ciation  a.s  ajipli(!d  to  labor  unions  may  be  seen  by  consulting  the  I'^ngli.sh  Statutes, 
supra,  espcci.iliy  the  lOnglish  Cf)iiibin:ition  Act  of  ISOO  (supra,  p.  18)  and  the 
subsequent  English  labor  legislation  of  the  nineteenth  century. 


\/ 


\K*-X<- 


SECT.   II]  LAW   OF   rONRPIRACV  3T 

In  some  of  tho  counts  of  tho  indictniont,  the  piii-i:)or(  fjf  the  oath 
was  set  fortli,  and  others  merely  followi-d  the  Icnus  of  tlic  statute, 
omitting  to  set  forth  the  puri)ort  of  the  oatli. 

Guniiing,  for  the  prosecution,  stated  that,  in  March,  1834,  there 
existed  in  Cainhridt^e  a  trade's  union  of  the  ojx'rative  cordwainers  of 
that  town;  the  object  of  wliich  was  to  niai<e  a  powerful  confederacy, 
under  the  pretence  of  protecting  labour,  and  the  members  of  which  cX-*-^ 
were  bound  by  an  oath  not  to  disclose  the  secrets  of  the  association,  j^^  ^  1^ 
He  further  stated,  that,  a.s  the  union  was  dissolved,  he  should  offer 
no  evidence  on  this  indictment. 

BosANQUET,  J.  1  have  no  hesitation  whatever  in  sayirifz;,  that  con- 
federacies like  that  which  appears  to  have  existed  in  the  present  ease 
are  as  decidedly  in  contra  vent  if  )n  of  the  law  of  the  land,  a.s  they  are 
j)rej;nant  with  mischief  to  the  community  and  to  the  working  classes 
themselves.    It  is  for  the  sake  of  those  who  beloiifj;  to  a.ssociations  .   ^ 

like  that  of  the  late  Cordwainers'  Union  of  Cambridge,  that  I  now  VJix/ 
declare,  that  all  who  engage  in  associations,  the  members  of  which, 
in  consequence  of  being  so,  take  any  oaths  not  required  by  law,  are  ' 
guilty  of  an  offence  against  the  statirte,  which,  if  clearly  proved, 
would,  upon  conviction,  be  in  every  ca.se  followed  by  exemplary 
punishment.  It  is  impossible  that  any  well-ordered  .state  of  society 
could  tolerate  the  existence  of  confederacies  bound  together  by  secret  x/- 
compacts  and  oaths  not  required  by  law;  one  of  the  obvious  conse- 
quences of  such  confederacies  IxMng  to  deprive  the  state  of  the  benefit 
of  the  testimony  of  those  who  are  engaged  in  them  —  a  state  of 
things  injurious  to  individuals,  subversive  of  public  order,  and  strik- 
ing at  the  very  existence  of  the  state,  by  withdrawing  the  allegiance 
of  tlu^  subject  from  the  laws  of  the  land  to  the  secret  tribunals  of 
unlawful  societies,  constraining  the  conscience  by  oaths,  and  seeking 
to  obtain  their  objects,  whatever  they  might  be,  by  popular  intimi- 
dation. Verdict  —  Not  Guilty.^ 

Section  2.     Laiv  of  Conspiracy  ^ 
(A)  Criminal  Conspiracy 

ORDINANCE  OF  CONSPIRATORS 

33  Edw.  I  (1305) 

Conspirators  l)e  they  that  do  confetler  or  bind  thems(>lves  l)v  Oath, 
Covenant,  or  other  Alliance,  that  every  of  thera  shall  aid  and  bear 

'  For  Enirli.sh  oa.sos  decided  durinR  the  nineteenth  century  l>et\veen  the  Enjihsh 
Acts  of  1S2.'>  and  1S71,  the  .><tudent  should  consult  in  ad<iition  to  the  principal 
ca.se  Heji.  r.  Harris,  C.  &  M.  Gtil,  «.;  R.  r.  .Sclsby,  .")  Cox,  49.5.  it.;  K.  v.  Rowlands, 
2  Den.  3ti4;  Hilton  v.  Eckerslev,  S  K.  &  H.  47;  R.  r.  Perhain, .")  H.  it  X.  30;  Walsby 
V.  Anlev.  3  G.  &  K.  516;  O'Neill  v.  I^)nRnian,  4  B.  &  S.  37t);  O'Neill  r.  KruRer, 
4  B.  &  S.  389;  Wood  v.  Bowron,  L.  R.  2  q.  B.  21;  R.  r.  Skiiujer.  10  (ox.  493; 
R.  c.  Drtiitt,  10  Cox,  592,  infra,  p.  181;  FarriT  r.  Clo.se,  L.  R.  4  ().  H.  COJ;  R.  t'. 
Bunn,  12  Cox,  31(5. 

'  The  best  hook  on  the  suliject  of  Conspiracy  is  R.  S.  \Vrij;ht,  The  Liiw  of 


U-AA-c« 


Vw 


(/V^y^-i-*>^ 


38  LEGALITY   OF   COMBINATION  [CHAP.  II 

the  other  falsely  and  maliciously  to  indite,  or  cause  to  indite,  or 
falsely  to  move  or  maintain  Pleas;  and  also  such  as  cause  Children 
within  Age  to  appeal  Men  of  Felony,  whereby  they  are  imprisoned 
and  sore  grieved;  and  such  as  retain  Men  in  the  Country  with 
Liveries  or  Fees  for  to  maintain  their  malicious  Enterprises;  and 
this  extendeth  as  well  to  the  Takers,  as  to  the  Givers.  And  Stewards 
and  Bailiffs  of  great  Lords,  which,  by  their  Seignory,  Office,  or 
Power  undertake  to  bear  or  maintain  Quarrels,  Pleas  or  Debates, 
that  concern  other  Parties  than  such  as  touch  the  Estate  of  their 
Lords  or  themselves. 

This  Ordinance  and  final  Definition  of  Conspirators  was  made  and 
accorded  by  the  King  and  his  Council  in  his  Parliament  the  thirty- 
third  Year  of  his  Reign.' 

ANONYMOUS 

King's  Bench.     1350 

Year  Book,  24  Edw.  Ill,  f.  75,  pi.  99  2 

W[illiam],  the  son  of  W[illiam]  of  I[ngularby],  sues  now  in  the 
King's  Bench  to  reverse  a  judgment  given  against  him  in  the  Eyre  of 
Derby  before  Herle  [J.]  ^  upon  a  presentment  of  conspiracy. 

Thorpe  said  first  how  that  a  petition  was  sued  to  the  King,  etc.,  and 
.  "     ^-  aftei-wards  a  writ  came  to  the  Justices  that  they  proceed  to  hear  the 

\  errors  notwithstanding,  etc.    And  [the  plaintiff]  assigns  among  other 

•'  errors  that  in  the  presentment  there  was  comprised  no  day  nor  year 

\  '         nor  place  where  the  conspiracy  should  have  been  made;  and  in  that 
the  justices  put  him  to  deliver  hunself,  etc.,  they  erred.   Also,  how  in 
the  presentment  were  presented  certain  oppressions,  his  imprison- 
ment of  a  certain  person  until  he  had  paid  a  fine,  etc.,  and  put  to 
r-  profit,  and  things  of  this  sort,  which  things  sounded  more  in  the 

A/"*  nature  of  oppression  of  the  people  than  of  conspiracy.   Wherefore  in 

that  they  put  him  to  deliver  hmiself  from  such  a  charge  as  of  con- 
spiracy they  erred,  and  he  prayed,  etc. 

Criminal  Conspiracies  (London,  1873).  For  a  discussion  of  the  underlying  prin- 
ciples of  the  law  of  Conspiracy,  see  an  article  on  that  subject  in  35  Harvard  Law 
Review,  393.  For  a  scholarly  account  of  the  early  historical  development  of  Con- 
si)iracy,  see  P.  H.  Winfield,  The  History  of  Conspiracy  and  Abuse  of  Legal  Pro- 
cedure (1921). 

1  For  an  early  interi)retation  of  the  Ordinance  of  Conspirators,  see  the  case  of 
Coldington  v.  Ba-ssingburn,  Y.  B.  Trin.  3  Edw.  II,  f.  81,  decided  in  1310.  A  con- 
venient translation  of  the  case  is  available  in  the  Selden  Society  Publications,  vol. 
20,  p.  193. 

*  A  somewhat  difTerent,  and  in  certain  respects  more  accurate  account  of  this 
<'a,sc  will  be  found  in  Berthelet'.s  quarto  edition  of  Y.  B.  24  lOdw.  Ill,  printed  in 
1532.    The  tran.slation  in  the  text  is  taken  from  the  Folio  edition  of  1079.  —  IOd. 

'  William  de  Herle,  appointed  justice  of  the  Common  Pleas  on  Oct.  If),  1320, 
<;hief  justice  on  Feb.  4,  1.327.  For  a  l)ricf  biographical  account,  sec  Fo.ss,  .ludges  of 
England,  vol.  3,  p.  440.  —  Ed. 


J 


SECT.  11.1  LAW   OF   CONSPIRACY  39 

Thorpe.  AcconHnK  to  law  you  cannot  take  aclvantago  of  what 
haf)[)<'iK'(l,  for  you  were  arraigned  of  the  same  i)r('S('iitm('nt  and 
pleaded  not  fi;uilty,  at  wliicli  time  you  woul<l  iiave  heen  aided  l)y  such 
matter  as  you  now  plead,  and  could  have  challenged  it.  And  foras- 
much as  you  did  not  do  this,  but  pleaded  as  above,  you  ousted  your- 
self of  this  advantage  for  all  time  afterward.   ...  . 

Shahesui  LL  [('.  J.].'     Certainly   with   respect  to  the   point  that       -LJ^^ 
the  party  did  not  challen^;e  the  court  oufiht   to  have  seen  whether 
there  was  a  case  of  conspiracy  and  incjuired  of  the  day,  the  year  and  ,    ,  _  - 

the  place  before  they  put  a  man  to  deliver  him.self,  for  otherwi.se  they  \J\_^    r   f^ 
could  not  know  from  what  vicina^;e  to  make  the  jury  come.  ' 

Thorpe.  His  accepting;  the  issue  id  supra  ^ave  them  authority, 
etc.,  and  furthcnuore  W.  de  J.  who  wa,s  also  indicted  and  attainted 
is  dead;  therefore  if  this  judfz^nent  be  reversed  it  will  be  reversed  for 
the  one  as  well  as  for  the  other,  because  one  cannot  conspire,  etc. 
Wherefore,  etc. 

Smareshull  [C  J.].  It  would  l)e  a  stronji;  thinfz;  if  the  death  of  his 
neighbor  or  of  his  companion  should  bar  his  action.  And  because 
there  was  neither  year  nor  day  nor  place  comprised  [i.  e.,  averred], 
etc.,  and  in  a  writ  of  conspiracy  mention  shall  be  made  between 
whom,  anil  at  what  place  the  prohil)it('d  things,  etc.  Furthermore, 
the  principal  case  of  the  conspiracy  allegetl,  etc.,  is  not  conspiracy 
but  is  rather  damage  and  oppression  of  the  people.  Wherefore  we 
reverse  and  annul  the  judgment,  etc. 


ANONYMOUS 

King's  Bench.     1354 

27  Ass.  f.  138,  pi.  44 

And  note,  that  two  were  intlicted  of  confederacy,  each  to  maintain 
the  other,  whether  his  cause  should  Ije  true  or  false,  and  notwith- 
standing that  nothing  was  suggested  to  have  been  put  in  ure,  the 
parties  were  put  to  answer,  because  this  thing  is  forbidtlen  by  the 
law,  etc. 

'  A  mis'^'ike  has  evidently  crept  into  many  of  the  editions  of  the  Year  Books,  in 
regard  to  the  name  of  the  justice  sitting  on  this  ca.se.  The  Folio  edition  of  1(>79, 
Kedinan's  edition,  and  several  others,  name  Shaudklowk  ("Shjird.").  Hut  aftor 
l.'?4'2,  J.  Shahdklowk  was  justice,  not  of  King's  Bench,  where  this  action  arose, 
but  of  Common  Pleas;  furthermore  lie  ihed  in  IS  Edward  III,  before  this  action 
wa.s  brought.  Berthelet  (1532)  gives  wliat  is  evidently  the  corre<'t  name,  i.  e., 
"Schar."  Tliis  was  William  dk  Shakkshull,  appointed  Chief  Justice  of  the 
King's  Bench  on  Oct.  20,  1350,  where  he  presided  till  July  5,  1357.  For  a  brief 
biographical  account,  sec  Foss,  Judges  of  England,  vol.  3.  p  504.  —  Ed. 


/. 


40  LEGALITY    OF    COMBINATION  [CHAP.  II 

THE  POULTERER'S. CASE 

Star  Chamber.     1611 

9  Coke,  55b 

Mich.  8  Jac.  Regis,  the  case  between  Stone,  plaintiff,  and  Ralph 
Waters,  Henry  Bate,  J.  Woodbridge,  and  many  other  poulterers  of 
London,  defendants,  for  a  combination,  confederacy,  and  agreement 
betwixt  them  falsely  and  maliciously  to  charge  the  plaintiff  (who  had 
married  the  widow  of  a  poulterer  in  Gracechurch  Street)  with  the 
robbery  of  the  said  Ralph  Waters,  supposed  to  be  committed  in  the 
county  of  Essex,  and  to  procure  him  to  be  indicted,  arraigned, 
adjudged,  and  hanged,  and  in  execution  of  this  false  conspiracy,  they 
procured  divers  warrants  of  justices  of  peace,  by  force  whereof  Stone 
was  apprehended,  examined,  and  bound  to  appear  at  the  assizes  in 
Essex;  at  which  assizes  the  defendants  did  appear  and  preferred  a 
bill  of  indictment  of  robbery  against  the  said  plaintilT;  and  the  jus- 
tices of  assize  hearing  the  evidence  to  the  grand  jury  openly  in  court, 
they  perceived  great  malice  in  the  defendants  in  the  prosecution  of 
the  cause;  and  upon  the  whole  matter  it  appeared,  that  the  plaintiff 
the  whole  day  that  Waters  was  robbed,  was  in  London,  so  that  it  was 
impossible  that  he  committed  the  robbery,  and  thereupon  the  grand 
inquest  found  ignoramus.  And  it  was  moved  and  strongly  urged  by 
the  defendants'  counsel,  that  admitting  this  combination,  confed- 
eracy, and  agreement  between  them  to  indict  the  plaintiff  to  be 
false,  and  malicious,  that  yet  no  action  lies  for  it  in  this  court  or  else- 
where, for  divers  reasons.  1.  Because  no  writ  of  conspiracy  for  the 
party  grieved,  or  indictment  or  other  suit  for  the  King  lies,  but 
where  the  party  grieved  is  indicted,  and  legiiimo  modo  acquietatus, 
as  the  books  are  F.  N.  B.  114  b;  6  E.  3,  41  a;  24  E.  3,  34  b;  43  E.  3, 
Conspiracy  11;  27  Ass.  p.  59;  19  H.  6,  28;  21  H.  6,  26;  9  E.  4,  12,  etc. 
2.  Every  one  who  knows  himself  guilty  may,  to  cover  their  offences, 
and  to  terrify  or  discourage  those  who  would  prosecute  the  cause 
against  them,  surmise  a  confederacj^,  combination,  or  agreement 
betwixt  tohem,  and  by  such  means  notorious  offenders  will  escape 
unpunished,  or  at  the  least,  justice  will  be  in  danger  of  being  per- 
verted, and  great  offences  smothered,  and  therefore,  they  said,  that 
there  was  no  precedent  or  warrant  in  law  to  maintain  such  a  l)ill  as 
this  is.  But  upon  good  consideration,  it  was  resolved  that  the  bill 
was  maintainable;  and  in  this  case  divers  points  were  resolved.'  .  .  . 

3.  It  is  to  be  observed  that  there  was  means  by  the  common  law 
before  indicttment  to  protect  the  innocent  against  false  accusation, 
and  to  dcHver  him  out  of  prison.  .  .  .  And  it  is  true  that  a  writ  of 
conspiracy  lies  not,  unless  the  party  is  indicted,  and  legitimo  modo 
ucfjuictaiiifi,  lor  so  are  the  words  of  t)ie  writ;  i)ut  tliat  a  false  con- 

'  The  first  two  points,  not  relating  to  the  Law  of  Conspiracy,  are  omitted. —  Ed. 


«ECT.  II]  LAW    OF    C-ON'SPI-ArY  41 

spinicy  betwixt  divers  jx^i-sons  shall  Ix-  punislu  d,  alllKJU^h  ii(jthinj< 
\)o  put  in  execution,  is  full  and  niiinifest  in  our  books;  and  therefor** 
in  27  Ass.  p.  11,  in  the  articles  of  the  charge  of  incjuiry  by  the  in- 
quest in  the  Kin^  ^^  Bench,  there  is  a  iioUi,  that  two  were  indicted  of 
confederacy,  each  of  them  to  maintain  the  other,  whether  their  mat- 
ter be  true,  or  false,  and  notwithstanding  that  nothing  was  supposed 
to  be  put  in  executitMi,  tlu;  parties  were  forced  to  answer  to  it,  be- 
cause the  thing  is  forbidden  by  the  law,  which  are  the  very  words  of 
the  book;  which  proves  that  such  false  confederacy  is  forbidden  by 
the  law,  although  it  was  not  put  in  use  or  executed.  So  there  in  the 
next  article  in  the  same  book,  incjuiry  shall  be  of  conspirators  and 
confederates,  who  agree  amongst  themselves,  etc.,  falsely  to  indict, 
or  acquit,  etc.,  the  manner  of  agreement  betwixt  whom,  which 
proves  also,  that  confederacy  to  indict  or  acquit,  although  nothing  is 
executed,  is  punishable  by  law:  and  there  is  another  article  concern- 
ing conspiracy  betwixt  merchants,  and  in  these  cases  the  conspiracy 
or  confed(?racy  is  punishable,  although  the  conspiracy'  or  confed- 
eracy be  not  executetl;  and  it  is  held  in  19  R.  2,  Brief  920,  a  man 
shall  have  a  writ  of  conspiracy,  although  they  do  nothing  but  con- 
spire together,  and  he  shall  recover  damages,  and  they  may  be  also 
indicted  thereof.  Also  the  usual  commission  of  oyer  and  terminer 
gives  power  to  the  commissioners  to  inquire,  etc.,  de  omnibu.s  co- 
ad  unati  on  ib  us,  confiederationibas,  et  falsis  aUiganiiis;  and  coadunatio 
is  a  uniting  of  themselves,  together,  coufcvderatio  is  a  combination 
amongst  them,  and  /a/.s-a  aUiyantia  is  a  false  binding  each  to  the 
other,  by  bond  or  promise,  to  execute  some  unlawful  act:  in  these 
cases  before  the  unlawful  act  executed  the  law  punishes  the  co- 
adunation,  confederacy,  or  false  alliance,  to  the  end  to  prevent  the 
unlawful  act,  quia  quando  aliquid  prohibetur,  prohibetur  ct  id  per  quod 
perrcnitur  ad  illwl:  et  (ijfectus  punitur  lieet  non  sequatur  cffeclus;  and 
in  these  cases  the  common  law  is  a  law  of  mercy,  for  it  prevents  the 
malignant  from  doing  mischief,  and  the  innocent  from  suffering  it. 
Mil.  37  H.  8,  in  the  Star  Chamber  a  priest  was  stigmatized  with  F. 
and  A.  in  his  foreiiead,  and  set  upon  the  pillory  in  Cheapside,  with  a 
written  paper,  for  false  accusation.  j\[.  3  c^'  4  Ph.  A:  Ma.,  one  also  for 
the  hke  cause /u«<  stigmaticus  with  F.  &  A.  in  the  cheek,  with  such 
superscription  as  is  aforesaid.  "  Vide  Proverb'  1.  »St  te  lactaverint  pec- 
catores  et  dixerint,  veni  nobiscum  ut  insidiemur  sanguini,  abscondamus 
■tendiculas  contra  insonteni  frnstra,  etc.,  omnem  pretiosam  substantiam 
reperieinua  ct  implebiniua  du)nus  nostras  spuliis,  etc.  Fili  mi,  ne 
ambides  cum  eis,  etc.,  pedes  enim  eorum  ad  malum  currunt,  et  festinant 
ut  ejjundant  sanquinem."  And  afterward  upon  the  hearing  of  the 
case,  anil  upon  pregnant  proofs,  the  defendants  were  sentenced  for 
the  said  false  confederacy  by  fine  and  imprisonment.  Xota,  reader, 
these  confetleiTicies,  punishai)le  by  law,  l)efore  they  are  executinl, 
ought  to  have  four  incidents:  1.  It  ought  to  be  declared  by  some 
manner  of  prosecution,  as  in  this  casc^  it  wa^.  either  by  making  of 


42  LEGALITY   OF   COMBINATION  [CHAP.  II 

bonds,  or  promises  one  to  the  other;  2.  It  ought  to  be  mahcioiis,  as 
for  unjust  revenge,  etc.  3.  It  ought  to  be  false  against  an  innocent; 
4,  It  ought  to  be  out  of  court  voluntarily. 


JAMES  BAGG'S  CASE 

King's  Bench.     1616 

11  Coke,  936,  98a 

And  in  this  case,  first,  it  was  resolved,  that  to  this  court  of  King's 
Bench  belongs  authority,  not  only  to  correct  errors  in  judicial  pro- 
ceedings, but  other  errors  and  misdemeanors  extra-judicial,  tending 
to  the  breach  of  peace,  or  oppression  of  the  subjects,  or  to  the  raising 
of  faction,  controversy,  debate,  or  to  any  manner  of  misgovern- 
ment;  so  that  no  wrong  or  injury,  either  public  or  private,  can  be 
done,  but  that  it  shall  be  (here)  reformed  or  punished  by  due  course 
of  law.^  .  .  . 

WILLIAM  HAWKINS:  PLEAS  OF  THE  CROWN 

1716 

There  can  be  no  doubt,  but  that  all  Confederacies  whatsoever, 
wrongfully  to  prejudice  a  third  Person,  are  highly  criminal  at  Com- 
inon  Law,  as  where  divers  Persons  confederate  •^  together  by  indirect 
Means  to  impoverish  a  third  Person,  or  ^  falsely  and  maliciously  to 
charge  a  Man  with  being  the  reputed  Father  of  a  Bastard  Child,  or 
to  maintain  one  another  in  any  Matter,  whether  it  be  true  or  false.'* — 
Vol.  1,  c.  72,  sec.  2,  p.  190  (1st  ed.).^ 

'  Only  a  brief  extract  from  the  opinion  is  given. 

In  Rex  V.  Sidley,  1  Sid.  168  (1664),  the  defendant  was  told  by  the  Justices  of 
King's  Bench  that  "although  there  was  not  now  a  Star  Chamber,  still  they  would 
have  him  know  that  this  court  is  custos  moriim  of  all  the  subjects  of  the  King." 

2  1  Levin.  62,  126;  1  Sid.  174;  1  Keb.  350. 

3  1  Levin.  62;  1  Mod.  185,  186;  1  Sid.  68;  1  Keb.  254. 
^  27  A.SS.  44;  9  Co.  56b;  2  Rol.  Ab.  77,  pi.  2,  3. 

*,  Hawkins  cites  in  .support  of  his  statement  only  four  cases  and  two  notes. 
These  arc  Rex  v  Timbcrley,  1  Sid.  68,  1  Keb.  254,  1  Lev.  62;  The  Poulterers' 
Case,  9  Coke,  55b;  Reg.  v.  Best,  6  Mod.  185;  and  Starling's  Ca.se,  1  Lev.  125,  126, 
1  Sid.  174,  1  Keb.  6.50;  and  the  two  brief  notes  in  27  Ass.  44  (6)  and  2  Rol.  Ab.  77, 
pi.  2,  3.  fTwo  of  Hawkins'  citations  arc  erroneous.  For  1  Kcblo,  350,  ho  evidently 
means  1  Keble,  650,  and  for  1  Mod.  185,  he  evidently  means  6  Mod.  185.)  With 
the  possible  exccjjtion  of  Starling's  Case,  not  one  of  these  cases  or  notes  .supports 
Hawkins'  .statement.  All  except  Starling's  Case  fall  within  the  terms  of  the  Or- 
dinances of  Conspirators  or  are  conspiracies  to  achi(-vc  f^ome  criminal  object,  and 
therefore  prove  nothing  as  to  the  criminniity  at  common  law  of  a  "confederacy 
wrongfully  to  prejudice  a  third  person."  Hex  v.  Timbcrley  and  The  Poulterers' 
Case  concern  conspiracies  to  procure  false  indictments;  Reg.  v.  Best  concerns  a 
conspiracy  falsely  to  charge  another  with  being  the  father  of  a  bastard  in  order  to 
extort  money.  Even  the  two  notes  do  not  support  Hawkins'  statement.  Hawkins' 
only  po.ssible  su|)f)ort  is  Starling's  Case;  and  a  careful  reading  of  that  case  would 


SECT.  II]  LAW    OF    Tf JNSIMRACY  43 

RHX  r.   J:I)\VA1U)S 

King's  Bench.      17_M 

8  Mwlern,  320 

Tlic  (Icfciidaiits  wen-  inclicted,  for  that  tli.'v,  per  nnispiralionem 
inter  eos  habilam,  gave  tho  husband  money  to  marry  a  jxxjr  h(.'lples8 
woman,  wlio  was  an  inhabitant  in  tho  parish  of  B.  and  incapable  of 
marriage,  on  puri)ose  to  gain  a  settlement  for  lier  in  the  i)arish  of  A. 
where  the  man  was  set  tier  I. 

It  was  moved  to  qiiasli  tliis  indictment,  because  it  is  no  crime  to 
marry  a  woman  and  give  her  a  jwrtion;  and  the  justices  arc  not 
proper  judges  what  woman  is  capable  (jf  a  husband,  neither  have 
they  iiny  jurisdiction  in  conspiracies. 

It  was  insisted  on  th(>  other  side,  that  there  is  a  crinje  set  forth  in 
this  indictment,  which  is  a  conspiracy  to  charge  a  parish,  etc.,  ami  a 
conspiracy  to  do  a  lawful  act,  if  it  be  for  a  bad  end,  is  a  good  founda- 
tion for  an  indictment.  An  indictment  for  a  conspiracy  to  charge  a 
man  to  be  the  fatlier  of  a  bastard  ciiild,  was  held  good,'  though 
fornication  is  a  spiritual  offence;  because  the  Court  of  King's  Bench 
has  cognizance  of  every  unlawful  act  Ijy  which  damages  may  ensue. 
So  an  information  for  a  conspiracy  to  impoveri.sh  the  farmers  of  the 
excise,  was  held  good.^ 

To  wiiich  it  was  answered,  that  those  were  conspiracies  to  do  un- 
lawful acts;  l)ut  it  was  a  good  act  to  provide  a  husl)and  for  this 
woman. 

The  CotJRT.  The  quashing  indictments  is  a  discretionary  power 
of  the  Court,  but  in  this  case  tiie  defendant  has  not  sliewed  anything 
to  induce  the  Court  to  quash  the  indictment;  and  if  the  matter  Ik? 
doubtful,  the  defendant  must  plead  or  demur;  but  indictments  for 
conspiracies  are  never  quashed.  A  bare  conspiracy  to  do  a  lawful 
act  to  an  unlawful  end,  is  a  crime,  though  no  act  be  done  in  conse- 
quence thereof ;  ^  but  if  the  fault  in  the  indictment  be  plain  and  ap- 
parent, it  is  quashed  for  that  reason,  and  the  party  shall  not  be  put 
to  the  trouble  to  plead  or  demur.  Suppose  there  is  a  conspiracy  to 
let  lands  of  ten  pounds  a  year  value  to  a  poor  man,  in  order  to  get 
him  a  settlement,  or  to  make  a  certificate  man  a  parish  offic(M-,  or  a 
conspiracy  to  send  a  woman  l)ig  of  a  bastard  child  into  another 
parish  to  be  delivered  there,  and  .so  to  charge  that  parish  with  the 
child;  certainly  these  are  crimes  indictable.  But  in  this  indictment 
it  is  not  set  forth,  that  the  woman  was  likely  to  be  chargeable  to  the 

seem  to  prove  cxjvotly  the  oppo.site  of  Hawkins'  .statement.  .\.s  WrJKht  .states 
(Law  of  Criminal  C'on.^piracy,  p.  38):  "IStarlinn'.s  Ca-se]  apiK»ars  to  amount  to 
a  (locisioii  that  a  (•onil)iiiati()n  to  impoverish  a  man  (other  than  the  king)  by  means 
not  criminal  in  themselves,  is  not  criminal."  —  Ed. 

'  Teml)erley  v.  Child,  1  Sid.  tJS;  s.  c.  1  Ix>v.  t>'2:  Het  r.  .\rmstronK,  1  Vent.  304. 

»  Rex  V.  StarlinR,  1  Sid.  174. 

'  Keg.  V.  Best,  2  Ld.  Ray.  lUiT;  .s.  c.  (i  Mod.  ISo. 


44  LEGALITY   OF   COMBINATION  [CHAP.  II 

parish.  As  to  the  objection,  that  the  sessions  have  no  jurisdiction  in 
conspiracy,  the  contrary  is  true;  they  have  no  jurisdiction  in  perjury 
at  common  law,  but  by  the  statute  they  have;  and  they  have  no 
jurisdiction  to  indict  for  forgery,  but  certainly  they  have  jurisdiction 
de  conspirationibus,^  and  such  a  person  as  this  defendant  is,  was 
punished  by  indictment  at  common  law.^ 

But  in  the  Trinity  Term  following  judgment  was  given  for  the 
defendant,  because  it  was  not  averred  in  the  indictment,  that  the 
woman  was  last  legall}^  settled  in  the  parish  of  B.  but  only  that  she 
was  an  inhabitant  there. 


REX  V.  HAMMOND 

Westminster  Sittings.     1799 

2  Espinasse,  719 

This  was  an  indictment  against  the  defendants,  who  were  journey- 
men shoe-makers,  for  a  conspiracy  to  raise  their  wages. 

It  was  stated,  on  the  part  of  the  prosecution,  that  a  plan  for  a 
combination  amongst  the  journeymen  shoe-makers  had  been  formed 
and  printed  in  the  year  1792,  regulating  their  meetings  —  the  sub- 
scriptions for  their  mutual  support  —  and  other  matters  for  their 
mutual  government  in  forwarding  their  designs. 

The  prosecutor's  counsel  were  going  into  evidence  of  this,  when  the 
defendants'  counsel  objected  to  its  being  admitted,  until  it  was 
brought  home  to  the  defendants,  and  they  were  made  parties  to  the 
coml)ination  stated. 

Lord  Kenyon.  If  a  general  conspiracy  exists,  you  may  go  into 
general  evidence  of  its  nature,  and  the  conduct  of  its  members,  so  as 
to  implicate  men  who  stand  charged  with  acting  upon  the  tciTns  of  it, 
years  after  those  temis  have  been  established,  and  who  may  reside  at 
a  great  distance  from  the  place  wIk  ro  the  general  plan  is  carried  on: 
such  as  was  done  in  the  cases  of  the  state  trials  in  the  year  1745; 
where,  from  the  nature  of  the  charge,  it  was  necessary  to  go  into  evi- 
dence of  what  was  going  on  at  Manchester,  in  France,  Scotland,  and 
In^land,  at  the  same  time. 

His  Lordship  therefore  permitted  a  person  who  was  a  member  of 
this  society,  to  prove  the  printed  regulations  and  rules  of  the  society, 
and  that  he  and  others  acted  und(T  them  in  execution  of  the  con- 
spiracy charged  upon  tlie  defendants  Hammond  and  Wel)l>,  as  evi- 
dence introductory  to  the  proof  that  they  were  members  of  this 
society,  and  equally  concerned  —  but  added,  that  it  would  not  be 

•  Rex  V.  Rispal,  3  Burr.  1320. 

-  It  is  Hiiid,  s.  c.  1  Sess.  C';isos,  330,  that,  the  Court  loft  the  defeiKhmts  to  deunir 
f)r  plead  to  it,  as  they  should  think  fit;  and  s.  c.  1  Stra.  707,  that  on  a  demurrer  to 
tliis  indiftnncnt,  judgment  was  given  for  the  defendant,  because  it  is  not  an  offence 
indictable. 


SECT.  II]  LAW    OF    COXSIMKACY  45 

evidence  to  affect  tlie  (lefendiints,  unlil  they  were  made  parties  to  tlie 
same  consijiracy. 

In  the  course  of  the  evidence,  it  was  stated,  tiiat  the  demands  of  tho 
journeymen  had  been  occasioned  l)y  some  of  the  mastei-s  ji;ivinn  wa^es 
l)oyond  what  were  the  usual  ones  in  the  trade. 

Lord  Kknyon  said,  that  mristers  should  be  cautious  oi  conduct - 
inn  themselves  in  tliat  way,  as  they  were  as  liai)le  to  an  indictment  for 
a  conspiracy  as  the  joiu'neymen  —  and  there  was  a  C4ise  where  a 
master,  from  shewing;  too  ^reat  indul^jence  to  his  men,  had  become 
himself  the  object  of  a  prosecution. 

The  defendants  were  found  -iuillv.' 


REX  V.  TURNER 
King's  Bench.     1811 

13  East,  228 

This  was  an  indictment  for  a  conspiracy,  which  stated  that  the 
defendants  unlawfully  and  wickedly  devisin^i  and  intendinji;  to  injure, 
oppress,  and  ajz;nrieve  T.  CJootUake,  of  Letcombe  Regis  in  the  county 
of  Berks,  Esc^uire,  on  the  24th  of  November,  50th  Geo.  3,  with  force 
and  arms,  at  East  ('hallow  in  the  county  aforesaid,  unlawfully  and 
wickedly  did  conspire,  combine,  confederate,  and  agree  together,  and 
with  divers  other  pei^sons  unknown,  to  go  into  a  certain  preserve  for 
hares  at  Letcombe  Regis  aforesaid,  in  the  county  aforesaid,  belonging 
to  the  said  T.  G.,  without  the  leave  and  against  the  will  and  consent  of 
the  said  T.  G.,  to  snare,  take,  kill,  destroy,  and  carry  away  the  hares 
in  the  said  presi^ve  then  Ixung,  and  to  procure  divers  bhulgeons  and 
other  offensive  weapons,  and  to  go  to  the  said  preserve  armed  there- 
with for  the  purpose  of  opposing  any  persons  who  should  endeavoiu* 
to  apprehend  or  obstruct  or  prevent  them  in  and  from  carrying  into 
execution  their  unlawful  and  wicked  purposes  aforesaitl;  and  that  the 
said  defendants,  in  pursuance  of  and  according  to  the  conspiracy, 
combination,  confederacy,  and  agreement  aforesaid,  so  as  aforesaid 
before  had,  afterwards,  to  wit,  on  the  said  day,  etc.,  about  the  hour  of 
twelve  in  the  night,  of  the  same  day,  with  force  and  arms,  at  East 
('hallow  aforesaitl,  in  the  county  aforesaid,  unlawfully  and  wickedly 
ilid  procure  divers  large  bludgeons,  and  other  otTensive  weapons,  ami 
did  go  to  the  said  preserve  of  the  said  T.  G.  anned  therewith,  for  the 
purpose  of  opposing  anv  {km-sohs  who  should  endeavour  to  apprehend, 
obstruct,  or  prev(>nt  them  in  and  from  carrying  into  excM-ution  their 
unlawful  and  wicked  purposes  aforesaid.  And  the  said  defendants, 
being  so  armeil  lus  aforesaid,  in  fiu't her  execution  of  their  unlawful  and 
wicked  purposes  aforesaid,  then  and  there  did  set  divers,  to  wit.  100 
snLiXJS,  for  the  purpose  and  with  flu'  int(>nt  to  tak(>,  kill,  destroy,  and 

'  Rex  V.  Ecdcs,  3  Dou^^las.  lUT;   Mrx  r.  Saltor.  .')  Esp.  12.5. 


46  LEGALITi"   OF   COMBINATION  [CHAP.  II 

carry  away  the  hares  in  the  said  preserve  then  being;  in  contempt  of 
the  king  and  his  laws,  to  the  evil  example  of  others,  to  the  great  dam- 
age of  the  said  T.  G.,  and  against  the  peace,  ere. 

After  a  verdict  of  guilty,  it  was  moved  in  the  last  Term,  by  Jervis, 
to  arrest  the  judgment  for  the  insufficiency  of  the  charge,  which  was 
only  that  of  an  agreement  to  commit  a  mere  trespass  upon  property, 
,.nd  to  set  snares  for  hares,  and  was  not  an  indictable  offence,  but  at 
most  only  an  injury  of  a  private  natm'e,  prohibited  sub  modo,  under  a 
penalty.  And  2  Hawk.  P.  C.  c.  25,  s.  4,  was  referred  to.  Another 
objection  was  taken,  that  the  place  where  the  offence  was  committed 
was  not  alleged  with  sufficient  certainty  and  precision. 

Gleed  now  opposed  the  rule,  and  endeavoured  to  sustain  the  indict- 
ment upon  the  authority  of  2  Hawk.  P.  C.  c.  72,  s.  2,  where  it  is  said 
that  all  confederacies  whatsoever  wrongfully  to  prejudice  a  third  per- 
son are  highly  criminal  at  common  law;  as  where  several  confederate 
to  maintain  one  another  in  any  matter  whether  it  be  true  or  false.  The 
cases  also  shew  that  it  is  equally  an  offence  to  combine  to  do  a  lawful 
act  by  unlawful  means,  or  to  an  unlawful  end,  as  to  do  an  act  in  itself 
unlawful;  as  in  the  instance  of  workmen  conspiring  together  to  raise 
their  wages,^  or  parish  officers  conspiring  to  marry  a  helpless  pauper 
into  another  parish,  to  settle  her  there  and  rid  themselves  of  her  main- 
tenance.2  And  in  all  cases  of  unlawful  conspiracy,  the  mere  unlawful 
agreement  to  do  the  act,  though  it  be  not  afterwards  executed, 
constitutes  the  offence;  according  to  Rex  v.  Armstrong  and  Others, 
1  Ventr.  304,  and  Rex  v.  Rispal.^  In  this  latter  case  the  indictment 
for  conspiring  to  charge  a  man  with  a  false  fact,  and  exacting  money 
from  him  under  pretence  of  stifling  the  charge,  was  sustained;  though 
the  fact  imputed,  which  was  merely  that  of  taking  hair  out  of  a  bag 
belonging  to  the  defendant  Rispal,  did  not  import  in  itself  to  be  any 
offence.  [Lord  Ellenborough,  C.  J.  All  the  cases  in  conspiracy 
proceed  upon  the  ground  that  the  object  of  the  combination  is  to  be 
effected  by  some  falsity;  insomuch  that  in  Taylor  and  Towlin's  case  in 
Godb.  444,  it  was  held  necessary  in  conspiracy  to  allege  the  matter  to 
be  false  et  malitiose.  By  the  old  law  indeed  the  offence  was  considered 
to  consist  in  imposing  by  combination  a  false  crime  upon  a  person.  But 
are  you  prepared  to  shew  that  two  unqualified  persons  going  out  to- 
gether by  agreement  to  sport  is  a  public  offence^?]  Modern  cases  have 
carried  the  offence  further  than  some  of  the  old  authorities,  such  as 
The  King  v.  Eccles  and  Others  where  the  defendants  were  convicted 
upon  a  charge  of  conspiring  together  by  indirect  means  (not  stating 
what  those  means  wore)  to  prevent  a  person  from  carrying  on  his 
trade.  And  in  The  King  v.  Spraggo  and  Others,  2  liurr.  993,  which 
charged  the  defendants  with  a  conspiracy  to  indict  and  prosecute 

'  The  TCiiiK  V.  Tho  .Tf)urnoymon  Tailors  of  Cambridge,  8  Mod.  11. 
2  'I'lic  KiriK  ('.  iMlwurds  and  Others,  8  Mod.  320. 
a  3  Burr.  1320,  and  1  Blac.  Rep.  368. 


SECT.  II]  LAW    OF   CONSPIRACY  47 

W.  G.  for  a  oriiuo  liahlo  l)y  law  to  ho  capifally  piiiiishod,  and  that  in 
pui"Kuanco  of  such  conspiracy  they  (Hd  aftciwaids  indict  liini;  one  of 
the  ohjections  was,  that  the  charge  wa-s  only  <jf  a  conspiracy  to  indict, 
not  of  a  conspiracy  to  indict  falsely:  hut  it  was  ovcrmled. 

Loud  Ellknuorough,  C.  J.  That  was  a  conspiracy  to  indict  an- 
other of  a  capital  crime;  which  no  doubt  is  an  offence.  And  the  case 
of  Th(>  King  r.  l']ccles  and  Others  was  considered  as  a  conspiracy  in 
restraint  of  trade,  and  so  far  a  conspiracy  to  do  an  unlawful  act  affect- 
ing the  public.  But  I  should  l)e  sorry  that  the  cases  in  conspiracy 
against  individuals,  which  have  gone  far  enough,  slujuld  b(;  jjushed 
still  farther:  1  should  be  sorry  to  have  it  doubted  whether  jx.-i-sons 
agreeing  to  go  and  sport  upon  another's  ground,  in  other  words,  to 
commit  a  civil  trespass,  should  be  thereby  in  peril  of  an  indictment 
for  an  offence  which  would  subject  them  to  infamous  punishment. 

Peu  CuiiiAM,  liulc  absolute. 


REX  V.  PYW'ELL 
Westminster  Sittings.     1816 

1  Starkie,  402 

This  was  an  indictment  against  the  defendants  for  a  conspiracy  to 
cheat  and  defraud  (leneral  Maclean,  hy  selling  him  an  unsound  horse. 

It  apjx^ared  that  the  defendant,  Pywcll,  had  advertised  the  sale  of 
horses,  undertaking  to  warrant  their  soundness.  Upon  an  application 
by  General  ^Maclean  at  Py well's  stai)les,  Budgery,  another  of  the 
defentlants,  statctl  to  him  that  he  had  lived  with  the  owner  of  a  hoi-se 
which  was  shewn  to  him,  and  that  he  knew  the  hoi"se  to  be  perfectly 
sound,  and,  as  the  agent  of  Pywell,  he  warranted  him  to  be  sound. 
General  Maclean  purchased  the  horse,  and  took  the  following  receipt: 

"Receiveil  of Maclean,  Esq.,  the  siun  of  fifty  guineas,  for  a 

gelding  warranted  sound,  to  be  returned,  if  not  approved  of,  within  a 
week." 

It  was  discovered  very  soon  after  the  sale,  that  the  animal  was 
nearly  worthless.  The  pros(>cutoi-s  were  proceeding  to  give  evidence 
of  the  steps  taken  to  return  the  gelding,  when  — 

Lord  Ellenuouougu  intimateti  tiiat  the  case  did  not  assume  the 
shape  of  a  conspiracy;  the  evidence  would  not  warrant  any  proceeding 
beyond  that  of  an  action  on  the  warranty,  fcir  the  breach  of  a  civil 
contract.  If  this  (he  said)  wimv  to  l)e  considtM'ed  to  l>e  an  indictable 
offence,  then  instead  of  all  the  actions  wliich  had  Ix^en  brought  on 
warranties,  the  defendants  ought  to  have  Ix^en  indicted  as  cheats. 
And  that  no  indictment  in  a  case  like  this  could  i>e  maintainetl,  with- 
out evidence  of  concert  between  the  jxvrties  to  effectuate  a  fraud. 

The  defendants  were  accordingly  acciuitted. 


48  LEGALITY   OF   COMBINATION  [CHAP,  n 

REX  V.  byk:erdike 

Nisi  Prius.     1832 
1  Moody  &  Rob.  179 

First  count  of  the  indictment  charged,  that  R.  Bykerdike,  with 
divers  others,  etc.,  did  conspire,  combine,  confederate,  and  agree 
unlawfully  to  intimidate,  prejudice,  and  oppress  one  John  Garforth 
in  his  trade  and  occupation,  as  agent  for  a  certain  colhery,  to  wit,  etc., 
and  to  prevent  the  workmen  of  the  said  J.  G.  from  continuing  to  work 
in  the  said  colliery. 

Second  count  laid  a  conspiracy  to  oppress  and  injure  Joseph  Jones 
and  others,  partners  in  a  certain  colhery,  to  wit,  etc.;  and  to  prevent 
the  workmen  in  the  employ  of  the  said  J.J.  and  others,  his  partners, 
from  continuing  to  work  at  the  said  colliery,  and  compel  the  said  J.J. 
and  others,  his  partners,  to  discharge  the  said  workmen  in  their 
employ. 

Jones  was  an  owner  of  the  Fairbottom  colliery,  Garforth  was  agent 
for  the  colliery.  Seven  colliers  had  been  smnmoned  before  a  magistrate 
by  Garforth  for  refusing  to  work.  It  appeared  that  this  was  done  at 
their  own  request,  as  they  were  afraid  to  work  except  under  the  ap- 
pearance of  being  compelled  to  do  so.  The  body  of  the  other  men  met, 
having  taken  certain  oaths,  and  agreed  upon  a  letter  addressed  to 
Garforth,  to  the  effect,  that  all  workmen  in  Garforth's  employ  would 
"strike  in  fourteen  days,  unless  the  seven  men  were  discharged  from 
the  colliery."  The  letter  concluded,  "By  order  of  the  board  of  direc- 
tors for  the  body  of  coal  miners.   Fairbottom  Colliery." 

Dr.  Browne,  for  the  defendant,  argued  that  the  indictment  must  be 
understood  as  charging  a  conspiracy  to  procure  all  the  workmen  to  be 
discharged,  which  clearly  was  not  supported  by  the  facts.  And  that 
as  to  the  earlier  part  of  the  indictment,  the  workmen  were  clearly 
justified  in  combining  among  themselves  not  to  work  since  the  late 
act  6  G.  4,  c.  120.  ' 

Brandt  and  Toivnshend,  for  the  prosecution,  cited  R.  v.  Fergusson 
and  Edge,  2  Stark.  N.  P.  489,  and  R.  v.  Home,  Cowp.  680,  shewing 
that  an  allegation  as  to  "the  workmen,"  was  supported  bj^  proof  as  to 
some  of  the  workmen.  And,  as  to  the  statute,  they  argued  that  it 
did  not  protect  a  combination  for  such  a  purpose  as  this,  but  only 
for  obtaining  higher  wages,  regulating  time,  etc. 

Patteson,  J.,  told  the  jury,  that  a  conspiracy  to  procure  the  dis- 
charge of  any  of  the  workmen  would  support  the  incUctment,  which 
did  not  necessarily  lay  the  intent  as  to  all  th(^  worknuMi:  and,  if  it  did, 
that  it  was  still  a  question  whether  the  facts  would  not  have  proved  it 
as  to  all.  Further,  that  the  statute  never  meant  to  empower  workmen 
to  meet  and  (;ornbine  for  the  purpose  of  dictating  to  the  master  whom 
he  should  empT()y;  and  that  this  compulsion  was  cTeaiTy  illegal. 

The  defendant  was  convicted. 


SECT.  II]  LAW   OF   CONSPIRACY  49 

REGINA  V.  DliiriT 
Central  Cki.mlnal  Court      18G7 

10  Cux  C.  C.  592 
See  infra,  p.  181  for  a  report  of  the  ciise. 

REGINA  V.  WARBL'RTON 
Crown  Case  Reserved.     1870 
L.  R.  1  C.  C.  R.  274 

Ca.se  stated  by  Brett,  J.:  — 

Indictniont,  amontj;st  other  counts,  that  the  prisoner  had  unlaw- 
fully conspired  with  one  Joseph  Warl)urton,  and  one  W.  H.  Pcpys, 
by  divei*s  subtle  means  and  devices  to  cheat  and  defraud  the  [)rosc- 
cutor,  S.  C.  Lister. 

At  the  trial  at  the  summer  a.ssizes,  in  1870,  for  the  West  Riding  of 
Yorkshire,  at  Leeds,  it  was  found  that  the  prisoner  and  Lister  were  in 
18G4  in  partnei-ship,  and  carried  on  a  part  of  the  partncrshij)  Ijusincss 
at  Urbigau,  in  Saxony,  by  there  selling  patent  machines,  that  the 
prisoner  had  given  notice  according  to  the  terms  of  the  partnership 
agreement  for  a  dissolution  of  the  partnership  l^etween  himself  and 
Lister;  and  that  upon  such  dissolution  an  account  was  to  be  taken 
according  to  the  partnership  agreement  of  the  pai"f nei-ship  projierty, 
anil  that  according  to  it  such  property  would  be  divided  on  such  dis- 
solution in  certtiin  proportions  between  the  prisoner  and  Lister  after 
pajTiient  of  partnership  lial)ilities;  and  that  the  prisoner,  in  order  to 
cheat  Lister,  had  agreed  with  his  brother  Joseph  Warl)urton,  who 
managed  the  partnership  business  at  Urbigau,  and  with  Pepys,  who 
resided  at  Cologne,  to  make  it  appear  by  documents,  purporting  to 
have  passed  between  Pepys  and  Joseph  Warburton,  and  by  entries  in 
the  partnei-ship  books  or  accounts,  made  under  the  superintendence  of 
Joseph  Warburton,  that  Pepys  was  a  creditor  of  th(^  finn  for  moneys 
advanced;  and  that,  bj-  rea.son  of  such  documents  and  entries,  certain 
partnership  property  was  to  be  withdrawn  and  to  be  handed  to  Pepys 
or  otherwise  al)stracted  or  kept  back  so  as  to  be  divided  between  the 
prisoner  and  Joseph  Warburton  and  Pepys,  to  the  exclusion  of  Lister 
from  any  interest  or  advantage  in  or  from  or  in  respect  of  it. 

The  juiy,  upon  this  eviilence,  fcnmd  the  prisoner  guilty  of  the  con- 
spiracy charged,  and  rightly  so  found  if  in  point  of  law  such  an  agree- 
ment made  by  a  partner  with  such  an  intent  to  d(>fraud  his  partner  of 
[)artn(M-ship  projierty  and  to  exclude  him  entirely  from  any  interest  in 
or  advantage^  from  it  on  such  an  occasion,  that  is  to  say,  on  th(^  taking 
of  an  account  for  the  purpose  of  dividing  the  partnei"ship  property  on 
a  tlissolution  of  tii(»  partnerehip,  by  means  of  false  entries  in  the  part- 
nership books,  and  false  documents  purporting  to  have  pas.sed  with  a 
supposed  cHMJitor  of  tlx*  firm,  is  a  consjiiracy  for  which  a  prisoner  can 
be  criminalh'  convicted. 


50  LEGALITY   OF   COMBINATION  [CHAP.  II 

The  offence,  if  it  were  one,  was  fully  completed  before  the  passing  of 
31  &  32  Vict.  c.  116,  by  which  a  partner  can  be  crmiinally  convicted 
for  feloniously  stealing  partnersliip  property. 

The  question  for  the  opinion  of  the  Court  was  whether  the  verdict 
could  be  sustained  so  as  to  support  a  conviction  for  conspiracy  in 
point  of  law. 

Waddy  {Whitaker  with  him)  for  the  prisoner.  To  constitute  a  con- 
spiracy there  must  be  an  agreement  to  do  an  illegal  act  or  to  do  a  legal 
act  by  illegal  means.  Here  the  acts  agreed  upon,  although  doubtless 
immoral,  are  not  illegal.  If  the  agreement  had  been  carried  out,  the 
prisoner  could  not  have  been  sued  at  law  by  Lister,  nor  could  he  have 
been  indicted  for  doing  the  agi'eed  acts:  Lindlcy  on  Partnei-ship,  2d 
ed.,  vol.  ii,  p.  856.  It  is  not  an  indictable  offence  for  one  partner  to 
obtain  some  of  the  partnership  money  from  the  other  partners  by 
means  of  a  fraudulent  misstatement  of  existing  facts:  Reg.  v.  Evans.^ 
The  acts  contemplated  by  the  agreement  were,  therefore,  neither 
actionable  nor  criminal. 

[CocKBURN,  C.  J.  Even  assuming  that  no  action  or  indictment 
would  lie  for  such  acts,  the  acts  are  wrong-ful  nevertheless,  and  there 
is  a  remedy,  \'iz.,  by  proceedings  in  equity.] 

An  act  which  merely  gives  a  right  to  proceed  in  equity  is  not  an 
illegal  act  within  the  meaning  of  the  definitions  of  conspiracy. 

Maule,  Q.  C.  {Nathan  with  him),  for  the  prosecution,  was  not 
called  upon. 

CocKBURisr,  C.  J.  It  has  been  doubted  somethnes  whether  the  law 
of  England  does  not  go  too  far  in  treating  as  conspiracies  agreements 
to  do  acts  which,  if  done,  would  not  be  criminal  offences.  This  ques- 
tion does  not,  however,  arise  here,  as  no  one  would  wish  to  restrict  the 
law  so  that  it  should  not  include  a  case  like  the  present.  It  is  sufficient 
to  constitute  a  conspiracy  if  two  or  more  persons  combine  b}^  fraud 
and  false  pretences  to  injure  another,^  It  is  not  necessary  in  order  to 
constitute  a  conspiracy  that  the  acts  agreed  to  be  done  should  be  acts 
wEicKlf' done  would  be  criminal.  It  is  enough  if  the  acts  agreed  to  be 
done,  although  not  criminal,  are  wrongful,  i.  e.,  amoimt  to  a  civil 
wrong.  Here,  there  was  vuidoulitcdly  an  agreement  with  reference  to 
the  division  of  the  partnership  property  or  of  the  partnership  profits. 
It  is  equally  clear  that  the  afj^-eement  was  to  commit  a  civil  wrong, 
because  the  agreement  was  to  deprive  the  prisoner's  partner  by  fraud 
and  fals(>  pretences  of  his  just  share  of  the  property  or  ])rofits  of  the 
partnership.  A  civil  wrong  was  therefore  intended  to  Lister.  The 
facts  of  this  case  thus  fall  within  the  rule  that  when  two  fraudulently 
combine^  the  agreement  may  be  criminal,  although  if  the  agreement 
were  carried  out  no  crime  would  be  conunitted,  but  a  civil  wrong  only 
would  be  infU('t(Ml  on  a  third  party.  In  this  case  the  ol^ject  of  th(>  agree- 
ment was,  perhaps,  not  cruninal.  It  is  not  necessary  to  decide  whether 

'  Leigh  &  Cave,  252;  32  L.  J.  (M.  C.)  38. 

^  Sec  Russell  on  Crimc.'^,  4th  cd.,  vol.  iii    p.  116. 


SECT.  II]  L.\W   OF   CONSPIRACY  51 

or  not  it  was  criminal ;  it  was,  howovfr,  a  conspiracy,  as  the  object  was 
to  coniinit  a  civil  wroiif^  Ity  fraud  and  false  pretences,  and  1  think 
that  the  conviction  shoukl  be  afhmied. 

Channell  and  Cleashv,  HB.,  Keating;  and  Hiij/it,  JJ.,  concurred. 

Conviction  ajjirincd} 


COMMONWEALTH  v.  PRIUS 
Supreme  Judicial  Court  ok  Massachusetts.     1857 

U  Gray,  127 

The  second  count  of  this  indictment  alleged  that  the  defendants,  on 
the  1st  of  March  ISoti,  owiiini^  a  stock  of  fi;oods  in  Lowell  as  partners, 
and  havinf:;  insvu^ance  thereon  ajz;ainst  hre  by  certain  insuranc(!  com- 
panies named  in  the  indictment,  amounting;  in  all  to  the  sum  of 
$10,000,  "did  then  and  there  corruptly,  wicketlly  ami  unlawfully  con- 
federate, agree,  combine  and  conspire  together,  to  insure  and  cause  to 
be  insured  on  said  stock"  certain  other  sums,  amounting  to  SlOjOOO 
more,  in  other  companies  named,  "by  then  and  there  falselj-  pretend- 
ing that  said  stock  so  by  said  firm  kept  and  used  in  their  said  business 
wa.s  then  and  there  of  a  nuich  greater  value  than  twenty  thousand 
dollars;  and  Jis  a  part  of  said  unlawful  agrecMuent  "  the  defendants 
"did  then  and  there  corruptly,  wickedly  and  luilawfully  confederate, 
agree,  coml)ine  and  conspire  together  to  obtain  from  all  said  insurance 
companies  as  and  for  a  loss  to  a  large  amount,  to  wit,  twenty  thousand 
dollars,  by  means  of  false  pretences  of  a  loss  thereafterward  to  happen, 
with  design,  under  pretence  of  a  loss,  to  cheat  and  defraud  all  said 
msurance  companies  and  each  one  of  them  of  their  moneys  by  meaius 
of  said  false  pretences;  against  the  peace  of  said  connnonwealth,  and 
contrary  to  the  fonn  of  the  statute  in  such  case  made  and  provideil.'' 

The  defendants,  being  convicted  in  the  court  of  common  pleas  on 
this  count,  moved  in  arrest  of  jutlgment,  tjiat  no  ofTence  was  alleged 
therein.  Sanger,  J.,  overruled  the  motion,  and  the  defendants  alleged 
exceptions. 

Bi(u-:low,  J.  The  second  count  in  the  indictment,  on  which  alone 
the  defendants  were  found  guilty,  is  fatally  defective.  It  was  not  a 
crunc  in  the  defendants  to  procure  an  over-insurance  on  their  stock  in 
trade.  It  was  at  most  only  a  civil  wrong.  The  charge  of  a  conspiracy 
to  do  so  does  not  therefore  amount  to  a  criminal  offence.  It  was  not  a 
combination  to  eiT(>ct  an  unlawful  purpose,  and  no  unlawful  means  by 
which  the  purpose  was  to  be  efTected  arc  set  out  in  the  indictment. 

The  residue  of  the  count  is  loo  imcci'tain  and  indefinite  to  supix)rt 
a  conviction.  It  amounts  to  nothing  more  than  an  allegation  of  a  con- 
spiracy to  cheat  and  defraud  the  msiuance  companic^s,  which  is  ckwrly 
insufhcient.  Commonwealtji  v.  Shedd,  7  Cush.  514.  The  means  by 
which  this  purpose  was  to  be  effected  are  not  statetl  with  such  prei-i- 

»  Reg.  V.  Timothy,  1  Fost.  &  Fin.  39  {accord). 


52  LEGALITY   OF   COMBINATION  [CHAP.  II 

sion  and  certainty  as  to  show  that  they  were  unlawful.  The  false 
pretences  by  which  monej'  was  to  be  obtained  from  the  insurance 
companies  are  not  set  out;  and  the  charge  of  a  conspiracy  "to  obtain 
monej^  by  means  of  false  pretences  of  a  loss  thereafterward  to  hapjjen," 
is  altogether  too  general  and  vague  a  statement  to  come  within  the 
rules  of  criminal  pleading.  Judgment  airested. 


STATE  V.  BURNHAM 

Superior  Court  of  Judicature  of  New  Hampshire. 

1844 

15  N.  H.  396 

Indictment,  for  a  conspiracy.  It  was  alleged  that  on  the  first  day  of 
January,  1841,  there  w^as  a  body  politic  in  this  State  called  the  Rock- 
ingham INIutaal  Fire  Insurance  Company;  that  they  had  power,  at 
their  annual  meeting  on  the  firet  Wednesday  in  August,  to  choose  a 
board  of  directors;  that  the  respondents,  with  other  persons  unknown, 
fraudulently  contriving  to  procure  the  election  of  certain  persons  as 
directors  of  the  company,  and  thereby  to  cause  themselves  to  be  em- 
ployed in  the  service  of  the  company,  and  to  make  gain  and  profit 
thereby,  on  the  first  day  of  July,  1841,  did  fraudulently  conspire  and 
combine  among  themselves  to  procure  and  induce  sundry  persons,  by 
fraudulently  pretending  to  make  and  issue  to  them  fraudulent  policies 
of  insurance,  to  appear  at  the  annual  meeting  of  said  company  and 
vote  for  directors  against  and  without  right,  to  the  great  injury  of  the 
company,  etc. 

The  jury  found  the  respondents  guilty,  and  their  counsel  took 
exceptions  in  arrest  of  judgment,  and  to  the  verdict.  .  .  . 

Gilchrist,  J.  The  allegations  in  the  indictment  in  relation  to  which 
the  questions  arise,  are  that  the  respondents  conspired  to  induce  sun- 
dry persons,  by  issuing  to  them  fraudulent  policies  of  insurance,  to 
appear  at  the  annual  meeting  of  the  company,  and  vote  for  directors 
without  right. 

The  first  exception  is,  because  the  policies  were  legal  and  valid,  and 
binding  on  both  parties. 

From  the  second  and  third  exceptions  we  understand  the  court  to 
have  instructed  the  jury  that  the  approval  of  the  policies  in  regular 
form  by  the  directors,  if  the  design  of  the  respontlents  were  to  impose 
upon  the  directors  in  procuring  the  policies,  would  not  be  conclusive 
evidence  in  favor  of  the  respondents;  that  if  the  jury  believed  the  re- 
spondents intended  that  the  policies  should  be  treated  as  mere  nulli- 
ties, for  every  purpose  but  that  of  enabling  the  holders  to  vote,  the 
charge  would  be  sustained,  though  tlie  respondents  agreed  that  the 
policies  should  be  duly  approved,  and  the  directoi-s  were  not  cognizant 
of  any  fraud,  and  though  the  policies  might  be  binding  upon  the 
parties. 


SECT.  II]  LAW    OF    COXSPIUACY  53 

Tlic  fourth  oxcoption  is,  that  the  conspiracy,  if  any  existed,  was  to 
procure  policies  to  be  issued  by  the  projx'r  oflieers,  and  not  to  cause 
them  tx>  Ixi  Issued  by  the  respondents. 

An  examination  of  all  the  ca.scs  on  the  subject  of  eon>spiracy  would 
be  a  work  of  considerable  labor,  althou^^h,  excepting  for  that  reason, 
the  sul)ject  is  not  one  of  much  intrinsic  diihculty.  (Jeneral  definitions 
of  the  ofTenee  are  given  in  numerous  ca-scs,  and  they  are  sufiicicntly 
precise  to  enable  us  to  apply  the  law  to  the  case  now  Ix'fore  us. 

In  tlie  first  place,  we  have  no  doui)t  that  a  consjiiracy  is  an  in- 
(liclal)le  (jffence  in  this  State.  It  is  pimishable  at  common  law,  it.s 
punishment  is  not  repugnant  to  our  institutions,  and  it  is  an  offence 
productive  of  as  much  injury,  and  as  deserving  reprehension  under 
one  form  of  government  as  another.  The  case  of  the  State  v.  Rollins, 
S  N.  H.  Rep.  550,  settl(>s  that  the  body  of  the  common  law,  and  the 
English  statutes  in  amendment  of  it,  so  far  as  they  were  applicable  to 
our  institutions  and  the  circumstances  of  the  country,  were  in  force 
here  upon  the  organization  of  the  provincial  government,  and  have 
been  continued  in  force  by  the  Constitution,  so  far  as  they  are  not 
repugnant  to  that  instruinent,  until  altered  or  repealed  by  the  legisla- 
ture. 

Combinations  against  law  or  against  individuals  are  always  dan- 
gerous to  the  public  peace  and  to  jniblic  security.  To  guard  against 
the  union  of  indiviiluals  to  effect  an  imlawful  design,  is  not  easy,  and 
to  detect  and  punish  them  is  often  extremely  difficult.  The  unlawful 
confederacy  is,  therefore,  punished  to  prevent  any  act  in  execution  of 
it.  This  principle  is  the  foundation  of  the  atljudged  cases  upon  this 
sul)ject.  But  the  law  by  no  means  intends  to  exclude  society  from  the 
benefits  of  united  effort  for  legitimate  purposes,  and  such  as  promote 
the  well  being  of  individuals  or  of  the  public.  It  uses  the  word  con- 
spiracy in  its  bad  sense.  An  act  may  be  immoral  without  being  in- 
dict al)le,  where  the  isolated  acts  of  an  individual  are  not  so  injin-ious 
to  society  as  to  require  the  intervention  of  the  law.  But  wh(>n  im- 
moral acts  are  committed  by  numbers,  in  furtherance  of  a  connuon 
object,  and  with  the  advantages  and  strength  which  determination 
and  union  imjiart  to  them,  they  assume  the  grave  importance  of  a 
conspiracy,  and  the  peace  and  ortler  of  society  require  their  repression. 
The  existence,  therefore,  and  execution  of  the  law  against  consjiiracies 
may,  in  certain  contingencies,  be  as  important  as  the  enforcement  of 
any  other  law  for  the  punishment  of  offences,  and  it  requires  but  little 
argmnent  to  d(Mnonstrate  that  such  a  law  may  be  necessary  \uider  iuiy 
system  f)f  government. 

We  do  not  propose  to  go  any  farther  than  this  ca.se  requires,  in  de- 
fining the  offenc(^  of  conspiracy.  From  its  nature,  no  comprehensive 
rule  can  be  laid  down  which  shall  include  all  instances  of  it,  and  we 
nnist  n^st,  therefon\  on  the  individual  ca.ses  decideil,  which  dejx'nd 
generally  on  particular  circumstances.  3  Ch.  O.  Law,  1140.  But  the 
authorities  agree  in  stating  that  a  consj^iracy  is  a  confederacy  to  do  an 


54  LEGALITY    OF    COMBINATION  [CHAP.  II 

unlawful  act;  j)r 3  lawful  act  by  unlawful  means,  whetherjto  the  prej- 
udice  of  an  individual,  or  of  tke  pul)lic,  and  that  iTls^^ot  necessaJX- 
that  its  f)l)ject  should  be  the  commission  cf  a  ciinie.  Hawk.,  B.  1,  ch. 
72;  3  Ch.  Cr.  Law,  1139;  2  Russ.  on  Cr.  ISOO;  Archb.  Cr.  PI.  390; 
Commonwealth  v.  Judd,  2  IMass.  329;  Commonwealth  v.  Hunt,  4 
Met.  111.  ... 

"VMiether  this  indictment  charges  the  respondents  with  a  conspiracy 
to  do  an  unlawful  act,  is  a  question  which  does  not  arise,  and  has  not 
been  made  upon  the  argument.  We  assimie,  therefore,  that  the  ulti- 
mate object  which  the  respondents  had  in  view  was  not  illegal.  Their 
purpose  was  to  procure  the  election  of  certain  persons  as  directors  of 
the  company,  and  thereby  to  cause  themselves  to  be  employed  in  the 
service  of  the  company;  and  this  end,  pursued  in  a  legitimate  and 
open  manner,  and  without  deceiving  or  attempting  to  deceive  and 
defraud  those  who  had  the  power  and  right  to  employ  them,  or  to  aid 
them  in  their  purposes,  was  as  unobjectionable  as  any  pursuit  what- 
ever. But  if,  by  an  insatiable  appetite  for  gain,  the  respondents  kept 
exclusively  in  view  the  object  to  be  accomplished,  lost  sight  of  honesty 
and  fairness  in  the  means  used  to  effect  it,  and  resorted  to  fraud  and 
falsehood,  in  such  case  they  have  made  themselves  amenable  to  the 
law. 

Assuming,  then,  that  the  purpose  of  the  respondents  was  lawful, 
still,  if  the  means  used  to  effect  it  be  unlawful,  the  offence  will  be  com- 
plete. The  illegality  of  the  means  in  such  case  must  be  explained  by 
proper  statements,  and  established  by  proof.  2  Russ.  on  Crimes,  569; 
The  King  v.  Seward,  1  Ad.  &  E.  706;  The  King  v.  Eccles,  3  Dougl.  337; 
Archb.  Cr.  PI.  390,  391.  The  act  of  marriage  is  in  itself  lawful,  but  a 
conspiracy  to  procure  it  may  amount  to  a  crime,  by  the  practice  of 
undue  means.  Fowler's  Case,  3  East  P.  C.  461;  Best's  Case,  2  Lord 
Raym.  1167;  Hawk.,  B.  1,  ch.  72,  §  3  (n.). 

The  authorities  agree  that  the  gist  of  the  offence  is  the  conspiracy. 
Best's  Case,  2  Lord  Raymond,  1167;  Vertue  v.  Lord  Clivc,  4  Burr. 
2475;  Commonwealth  v.  Davis,  9  Mass.  415;  Commonwealth  v.  Hunt, 

4  Uet.  125;  Gill's  Case,  2  B.  &  Aid.  204. 

When  it  is  said  in  the  books  that  the  means  must  be  unlawful,  it  is 
not  to  be  understood  that  those  means_jiiust  amount  to  indictable 
offences,  in  order  to  make  the  offence  of  conspiracy  completCTTTwill 
be  enough  if  tliey  are  corrupt,  dishonest,  fraudulent,  innhoral,  and  in 
that  sense  illegal,  and  it  is  in  the  combination  to  make  use  of  such 
practices  that  the  dangers  of  this  offence  consist.    State  v.  Buchanan, 

5  Har.  &  J.  317.  Conspiracies  may  be  indictable  where  neither  the 
object,  if  effected,  nor  the  means  made  use  of  to  accomplish  it,  would 
be  punishable  without  the  conspiracy.  In  the  case  of  a  conspiracy 
among  journeymen  to  raise  their  wages,  the  object  of  the  conspiracy 
is  lawful,  and  the  means  by  which  the  oliject  is  to  be  effected  are  no 
otherwise  unlawful  than  as  the  conspiracy  makes  them  so.  Rex  v. 
Tailors  of  Cambridge,  8  Mod.  11.  .  .  .    And  admitting  that  the  of- 


SECT.  II]  LAW   OF   CONSPIRACY  55 

font'o  of  conspiracy  is  one  which  should  be  punished,  if  a  combination 
to  do  (Ushonest  and  inanoral  acts  do  not  constitute  a  conspiracy,  even 
althfjugh  the  acts  be  not  indictaljlc  or  even  actionable,  in  numerous 
cases  justice  could  not  reach  tiic  otTenders. 

But  it  is  not  necessary,  in  the  present  case,  for  us  to  determine 
whether,  if  the  object  be  lawful,  the  offence  of  conspiracy  will  l)e  com- 
mitted if  the  means  used  be  no  otherwise  unlawful  or  immf)ral  than 
as  they  are  nuule  so  by  the  conspiracy. 

The  indictment  allef2;es  that  the  res[X)ndents  conspired  to  induce 
persons,  by  issuing  to  them  fraudulent  jwlicies  of  insurance,  to  apiK'ar 
at  the  annual  meet inu;  and  vote  for  directors.'  .  .  .  Can  we  say  that 
this  was  not  a  fraud  on  the  directoi-s;  that  it  was  not  a  fraud  on  the 
other  mend)ei's?  Can  we  say  that  policies,  legal  in  form,  legally  bind- 
ing in  fact  uj)on  the  insured,  but  which,  it  was  agreed,  should  not  have 
the  validity  they  imported,  were  not  founded  upon  a  corrupt  agree- 
ment; were  not,  in  the  language  of  the  indictment,  false  policies?  We 
can  regard  such  j^olicies  only  as  most  innnoral  and  fraudulent  means 
to  accomplish  the  ol)ject  of  the  respondents,  and  with  this  view  our 
opinion  is  that  the  instructions  of  the  court  were  correct. 

Judgment  on  the  verdict.- 

STATE  t'.  STRAW 
Supreme  Judicial  Court  of  New  Hampshire.     1861 

42  A'.  //.  393 

Indictment  for  conspiracy,  as  follows: 

"State  of  New  Hampshire.  Hillsborough  ss.  At  the  Supreme 
Judicial  Court,  held  at  Manchester,  within  and  for  the  county  of 
Hillsborough  aforesaid,  on  the  first  Tuesday  of  January,  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and  sixty,  the  grand  jurors 

'  Only  that  part  of  the  opinion  is  given  which  relates  to  conspiracy.  —  Ed. 

-  In  State  v.  Dalton,  134  Mo.  App.  517,  .534-53.5,  Xortoni,  J.,  says:  "While 
from  an  examination  of  the  authorities  it  may  be  as.serted  as  true  that  the  preci.se 
limits  of  the  rule  with  res{)ect  to  the  terms  '  unlawful  jiurpose  '  or  '  unlau'ful 
means,'  in  cases  where  neither  the  purpo.se  to  be  achieved  nor  the  means  to  be 
employed,  are  actually  criminal,  has  never  l^ecn  clearly  defined,  the  authorities 
assert  and  sustain  a  doctrine  commensurate  at  least  with  the  exigencies  of  the 
case  now  under  consideration.  The  doctrine  referred  to  arises  from  the  additional 
power  or  enhanceil  ability  to  accomjilish  a  result  which  is  in  many  ca.ses  present 
in  the  coml)ination  of  several  to  the  same  end.  In  some  degree,  the  principle  |M>r- 
vades  the  entire  law  of  con.spiracy.  It  may  be  .stated  as  a  general  pro|Hisition  that, 
where  an  ailditional  power  or  enhanced  ability  to  accomplish  an  injurious  purpose 
arises  by  virtue  of  the  confederation  and  concert  of  action,  an  element  of  criminal 
conspiracy  is  thereby  introduced  which  will  render  sufficiently  criminal  either  the 
means  or  the  purpose,  otherwise  merely  lawful,  to  sustain  a  conviction,  although 
the  means  or  the  end  were  not  such  as  are  indict^ible  if  performed  bj'  a  single 
individual." 

The  doctrine  that  the  crime  of  conspiracy  may  l>e  committed  even  thouuh 
neither  the  means  used  nor  the  end  pursued  would  of  itvself  constitute  a  brcjich  of 


56  LEGALITY   OF   COiMBINATION  [CHAP.  II 

for  the  state  of  New-Hampshire,  upon  their  oath,  present,  that 
Ezekiel  A.  Straw,  George  F.  Judkins,  Cyrus  Warner  and  George  W. 
Parker,  all  of  Manchester,  in  said  county  of  Hillsborough,  yeomen,  on 
the  twenty-eighth  day  of  July,  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  fifty-nine,  at  INIanchester  aforesaid,  in  the  county 
of  Hillsborough  aforesaid,  with  force  and  arms,  being  then  and  there 
possessed  of  evil  minds  and  dispositions,  unlawfully  and  wickedly  did 
conspire,  combine,  confederate  and  agree  together  unlawfully  to  put 
up  and  maintain  flashboards  upon  a  certain  dam  of  the  Amoskeag 
jManufacturing  Company,  situate  and  being  across  the  Merrimack 
river,  in  said  Manchester,  with  intent  to  defraud  John  Harvey, 
Edw^n  E.  Goodale  and  Joseph  Mitchell,  and  compel  the  said  Harvey, 
Goodale  and  Mitchell  to  dispose  of  and  part  with  their  rights  and 
property,  to  the  great  damage  of  the  said  Harvey,  Goodale  and 
Mitchell,  against  the  peace,  and  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided,  and  against  the  peace  and  dignity  of  the 
state.  Aaron  F.  Stevens,  Solicitor. 

This  is  a  true  bill  —  Samuel  S.  Moulton,  Foreman." 

The  defendants  filed  a  general  demurrer,  and  the  questions  thus 
arising  were  transferred. 

Sargent,  J.  The  questions  arising  in  this  case  are  upon  a  demurrer 
to  the  bill.  Several  grounds  are  stated  by  the  defendants'  counsel, 
upon  which  it  is  claimed  that  the  indictment  is  insufficient,  which 
objections  we  will  notice  in  the  same  order  in  which  they  are  stated. 

1.  The  first  objection  is,  that  the  indictment  does  not  set  forth  in 
proper  form  any  crime,  because  it  sets  forth  no  overt  act.  The  gist  of 
the  offense  by  which  the  wrong  is  done  —  the  putting  up  of  the  flash- 
boards  —  is  not  charged.  It  alleges  a  conspiracy  together,  but  no  act 
done  to  complete  the  conspiracy. 

This  objection  is  not  well  founded.  In  indictments  for  conspiracy 
no  overt  acts  need  ever  be  set  forth.  Though  it  may  be  common  to 
set  forth  such  acts  as  having  been  done  in  pursuance  of  the  conspiracy, 
and  in  order  to  effect  the  common  purpose  of  it,  yet  this  is  not  neces- 
sary. The  offense  is  complete  on  the  consummation  of  the  conspiracy, 
and  the  overt  acts,  though  they  may  be  set  forth  in  the  bill,  may  be 
either  regarded  as  matters  of  aggravation,  or  discharged  as  surplusage. 
Whart.  Am.  Cr.  Law,  498.  The  conspiracy  itself  is  the  offense,  and 
provided  the  indictment  shows  either  that  it  was  for  an  unlawful 
purpose,  or  to  effect  a  lawful  purpose  by  imlawful  means,  this  will  be 
sufficient,  and  whether  anything  has  ])oen  done  in  pursuance  of  it  or 
not,  is  immaterial.   Broom's  Leg.  Max.  147;  Rex  v.  Seward,  1  A.  &  E. 

the  criminal  law,  finds  little  support  apart  from  the  fraud  cases  in  actual  decisions. 
It  is  nevertheless  reiterated  in  countless  dicta,  in  numerous  statements  of  text 
WTiters,  and  in  encyclopaedias  of  law.  See,  for  example:  2  Bishop,  New  Crim. 
Law  (8th  ed.),  §§  180,  195;  3  Chittv  Crim.  Law.  1139;  0  Amer.  &  Kng.  Encyc.  of 
Law  (2d  ed.),  8.51 ;  8  Cyc.  G23;  12  C.  J.  547,  .548.  In  most  of  the  cases  cited  to  sup- 
port such  a  doctrine  either  the  ca.se  is  one  involviuK  fraud,  or  the  statement  is 
mere  dictum.     See  35  Tljirvard  T/iw  Rov.,  pp.  422-424. 


SECT.  II]  LAW   OF   CONSPIRACY  57 

713;  Rcgina  v.  Best,  2  Ld.  Kay.  11G7;  Arch.  Cr.  PI.  035;  lic-x  v.  (Jill, 
2  B.  &  Aid.  205;  1  Sulk.  174;  State  t-.  Burnhani,  15  N.  H.  39G. 

2.  Next  it  is  objected  that  thon;  is  no  alleviation  in  the  indictment 
that  the  complainants  have  been  compcllcil  to  (Hsp<jsc  oi  tiicir  i)rop- 
erty,  and  conscinicntly  that  no  injmy  of  the  kind  (omplain<'d  of  has- 
been  sustained. 

This  objection  is  also  without  foundation.  Tiiis  is  not  a  civil  action 
at^ainst  the  respondents,  for  conspiiin^;  together  and  injurinj^  the  com- 
plainants, in  which  damages  for  the  injury  are  soujiht  to  Ix-  iccovered. 
The  criminal  offense  of  conspiracy  may  be  committed  not  only  with- 
out any  overt  acts,  but  also  without  any  damage  or  injury  to  those 
conspiretl  against.  A  cons|^)ir;u'^  to  c;2Jimjjt  a  criint',  and  the  com- 
mission of  that  crime,  are  two  separate  and  (irstmct  otTenses.  To  be 
}?ure7  in  certain  ca-se;?,  when  a  respondent  is  guilty  l)oth  of  consijiring 
with  others  to  commit  a  crime,  and  also  of  committing  the  crime  itself, 
the  former  offense  is  merged  in  the  latter.  But  no  question  of  that 
kind  arises  here.  The  offense  complained  of  here  is  not  that  the  com- 
plainants were  damag(>(l,  nor  is  it  the  doing  of  any  act  by  the  con- 
spirators, but  it  is  the  unlawfully  conspiring  together. 

3.  Nor  is  there  more  weight  in  the  third  objection,  that  the  par- 
ticular rights  and  property  of  which  said  Harvey  and  otiiers  were  to 
be  defrauded  by  this  conspiracy,  are  not  described  and  set  forth  in  the 
bill.  It  is  not  alleged,  and  need  not  be,  that  said  Harvey  and  others 
have  been  deprived  of  any  right,  or  have  been  injured  in  or  defrauded 
of  any  right  or  property.  How,  then,  can  it  be  necessary  that  the 
property  or  right  shoukl  be  partip\ilarly  described,  when  it  is  imma- 
terial whether  this  right  or  property  has  been  in  any  way  affected? 
The  most  that  is  required  is  that  the  indictment  should  allege  a  con- 
spiracy to  do  an  unlawful  act,  or  to  do  a  lawful  act  l)y  the  use  of  un- 
lawful means,  and  stating  the  means  thus  conspired  to  be  used  to 
accomplish  such  lawful  object;  ])ut  when  this  is  tlone  it  is  not  held 
necessary  to  set  forth  the  particular  rights,  property,  goods  or  chattels 
of  which  the  respondents  conspired  to  defraud  the  complainant.^ 
Whart.  Am.  Cr.  Law,  490,  407,  and  cases  cited. 

4.  The  fourth  objection  is  that  the  bill  concludes  "contrary  to  the 
form  of  the  statute,"  when  there  is  no  statute  upon  that  subject  in  this 
state.  But  this  objection  is  not  available  even  upon  demurrer.  In  a 
common  law  indictment  the  words  "  contra  for  mam  statuti''  may  l)e 
rej(>ct(Ml  as  surplusage.  State  v.  Buckman,  8  N.  H.  203;  Connnon- 
wealth  /'.  Hoxie,  10  Ma.ss.  385;  1  Chit.  Cr.  Law,  205;  Whart.  Am.  Cr. 
Law,  105. 

5.  It  is  next  objected  that  the  charge  here  is  in  substance  ami  effect 
a  conspiracy  to  connnit  a  civil  trespa.ss,  and  that  an  indictment  will  not 
lie  for  such  an  act,  or  for  such  a  conspiring. 

The  allegation  is  that  the  respon<l(>nts  conspiiccl,  confedtM-ated, 
etc.,  unlawfully  to  put  up  and  maintain  fla.sh-boards  u{X)n  a  certain 
dam  of  the  Amoskeag  Manufacturing  Company.  situat(\  etc..  witii 


58  LEGALITY   OF   COMBINATION  [CHAP.  II 

intent  to  defraud  Harvey  and  others,  and  compel  them  to  dispose  of 
and  part  with  their  rights  and  property,  to  the  great  damage  of  the 
said  Harvey  and  others,  etc.  Now  there  are  several  authorities  that 
hold  that  an  indictment  will  not  lie  for  conspiring  to  commit  a  civil 
trespass  upon  property.  Rex  v.  Turner,  13  East,  228;  3  Chit.  Cr. 
Law,  1139;  2  Russell  on  Crimes,  687;  Arch.  Cr.  PI.  634;  Roscoe's  Cr. 
Ev.371. 

These  authorities  must,  however,  be  received  with  allowance,  for 
many  acts  which  at  common  law  would  amount  to  merely  a  civil 
trespass  to  real  estate,  are,  by  special  statutes  in  England,  and  in  most 
or  all  of  the  United  States,  made  crimes  or  misdemeanors,  and  a  con- 
spiracy to  commit  such  acts  would  of  course  be  indictable. 

In  the  case  before  us  the  indictment  does  not  charge  a  conspiracy  to 
conmait  a  trespass  in  terms,  but  it  is  evident  that  the  flash-boards 
which  the  defendants  are  charged  with  conspiring  to  keep  up  and 
maintain,  could  not  have  affected  Harvey  and  others'  rights  and  prop- 
erty in  any  other  way  than  by  throwing  back  the  water  of  said  river 
so  as  to  affect  their  real  estate,  or  some  rights  connected  therewith. 
The  injury  would  be  similar  to  that  caused  by  a  trespass,  though  not 
so  direct ;  and  if  an  indictment  would  not  lie  for  a  conspiracy  to  com- 
mit a  civil  trespass  upon  real  estate,  it  could  not,  it  would  seem,  in 
this  case.  It  could  not  make  the  offense  greater  to  do  an  injury  to  a 
man's  farm  indirectly,  than  it  would  to  do  the  same  directly,  so  as  to 
make  it  technically  a  trespass. 

This  is  not  a  conspiracy  to  cheat  and  defraud  Harvey  and  others  of 
their  rights  and  property.  It  is  only  alleged  that  such  was  the  intent, 
but  it  is  not  charged  as  any  part  of  the  conspiracy.  All  the  conspiracy 
charged  is  to  keep  up  and  maintain  flash-boards,  not  on  Harvey's 
land,  which  would  have  been  a  direct  trespass,  but  on  the  dam  of  the 
Amoskeag  Manufacturing  Company,  which  might  cause  a  similar 
injury  indirectly. 

Where  the  object  of  the  conspiracy  is  to  commit  a  mere  civil  tres- 
pass on  real  estate,  it  is  not  criminal,  because  such  an  act  by  one  person 
is  not  criminal,  and  many  united  have  in  this  case  no  more  power  for 
harm,  and  do  no  more  harm,  than  if  each  proceeded  with  his  part  of 
the  mischief  alone.   2  Bishop's  Cr.  Law,  sees.  158-160. 

Upon  the  last  ground  stated,  therefore,  the 

Demurrer  is  sustained. 


UNITED  STATES  CONSPIRACY  STATUTE 

U.  S.  Cnm.  Code,  §  37  » 

If  two  or  more  persons  conspire  either  to  commit  any  offense  against 
the  United  States,  or  to  dcfrauti  the  United  States  in  any  manner  or 
for  any  purpose,  and  one  or  more  of  such  parties  do  any  act  to  effect 

X-  1  Formerly  U.  S.  Revised  Statute,  §  5440,  35  Stat.  L.  1096. 


SECT.  II]  LAW    OF   CONSPIRACY  59 

thejil4sflLQlJiiC-^Qi!2[r^^^"y'  '''""^^  of  the  parties  to  such  conspirucy 
shall  l)(!  fined  not  more  tlion  ten  thousand  cl<jliai-s,  or  imprisoned  not 
more  than  two  years,  or  both. 

(B)  Civil  Conspiracy 

DOREMUS  V.  HENNESSY 

Appellate  Court  of  Illinois,  First  District.     1895 

G2  ///.  App.  391 

Mr.  Justice  Watkhmax  dc^livered  the  (jpinion  of  tlie  Court. 

In  her  deehiration,  appellee  allc^^es  that  she  \va.s,  in  the  year  1SS8, 
antl  thereafter,  keeping  a  laiuulry  oflice  in  the  city  of  Chicago;  that 
is,  a  place  at  which  she  received  clothing  which  {K'ople  desired  to  have 
laundered;  that  she  procured  the  laundering  of  the  same,  by  various 
persons  ojx'rating  laundries,  who,  when  the  work  wiis  projx'rly  done, 
returned  the  same  to  her,  for  delivery  by  her  to  her  ciLstoniei-s;  that 
the  appellants  maliciously  and  unlawfuUy  contrived,  plotted  together 
and  conspired  to  injure  her  in  her  good  name  and  credit,  and  injure, 
damage  and  utterly  destroy  her  saitl  laisiness,  because  she  would  not 
increiuse  the  price  chargeil  by  her  for  the  laundering  to  the  price  fixed 
and  reciuired  l>y  a  certain  organization  known  as  the  Chicago  Laun- 
diymen's  Association,  of  which  the  defendants  were  members;  and 
that  for  the  purpose  of  carrying  out  their  said  design,  they  induced 
varioas  parties  with  whom  she  had  business  engagements,  whom  she 
names,  by  false  representations  that  she  was  financially  irresponsible, 
and  by  tlireats  and  intimidations  that  the  appellants  would  injure  the 
business  of  said  parties,  to  break  their  contracts  and  engagements 
with  her  to  do  laimdry  work  for  her. 

That  the  said  persons  with  whom  she  had  engagements,  as  afore- 
said, did,  in  consequence  of  the  aforesaid  acts  of  the  said  appellants, 
break  their  said  contracts  with  her,  and  in  consequence  thereof,  her 
said  business  of  a  laundry  agency  was  broken  up  and  ruined,  and  she 
thereby  sustained  great  loss  and  damage. 

That  the  said  appellants  so  contrived,  plotted  and  conspired,  and 
so,  by  the  means  aforesaid,  injured,  broke  up  and  destroyed  her  said 
business,  and  caused  her  great  loss  and  damage,  for  no  pm-pose  what- 
ever, but  to  injure  and  destroy  her  said  business. 

A  great  deal  of  testimony  was  taken  upon  the  trial,  ll\(>  result  of 
which  was  a  verdict  of  80,000  for  apjiellee,  upon  which  judgment  was 
rendered,  from  which  appellants  prosecute  this  appeal. 

The  essence  of_a_conspiracy,  so  far  as  it  justifies  a  civil  action  for 
damagesTls  a  concert  or  combination  to  defraud,  or  to  cause  other 
injuiylo  {xM-sons  <)r  properfy,~^Tucli,  [)ecaufo  of  acts  done  in  pui'suauce 
oTsucli  conspiracy,  actually  results  in  damage  to  the  jx'i-son  or  prop- 
erfyof  the  person  injiued  or  defrauded.  A  civil  actionwHT  hof  Tie  for  a 
mefc'conspiracy.  Tt  is  the  damage  done  in  pursuance  of  the  con- 
Sph'acy  which  gives  the  right  of  action. 


60  LEGALITY   OF   COMBINATION  [CHAP.  II 

It  is  now  well  established  that,  in  civil  actions,  the  conspiracy  is 
not  the  gravamen  of  the  charge,  but  may  be  pleaded  and  proved  in 
aggravation  of  the  wrong  of  which  the  plaintiff  complains,  and  as  en- 
abling him  to  recover  against  all  the  conspirators,  as  joint  tort  feasors. 
If  a  plaintiff  fail  in  the  proof  of  a  conspiracy,  or  concerted  design,  he 
may  yet  recover  damages  against  such  of  the  defendants  as  are  shown 
to  be  guilty  of  a  tort,  directly  resulting  in  damages  to  the  plaintiff. 

It  has  sometimes  been  said  that  an  act  which  is  not  unlawful  if  done 
by  one  person,  can  not  be  unlawful  because  done  by  a  multitude. 
This  may  be  true.  It  must,  however,  be  borne  in  mind,  that  the  united 
act  of  many  persons  is  very  different  from  the  isolated  act  of  one,  as 
it  is  very  seldom  that  each  of  many  persons  do,  at  one  time,  as  in- 
dividuals, the  same  act,  without  there  having  been  before,  an  agreed 
concert  of  action.  The  united  call  or  cry  of  a  thousand  persons  is  a 
very  different  thing  from  the  call  or  cry  of  one;  and  if  the  united  call- 
ing of  a  thousand  was  by  previous  concert,  then  the  loud  acclaim  or 
disturbance,  which  the  union  of  so  many  voices  make,  is  the  act  of 
each  participating  therein. 

Honest  competition  in  business  is  always  pennissible,  and  it  is  not 
easy  to  draw  the  line  between  acts  which  are  but  lawful  competition 
and  those  which  are  unlawful,  because  designed  to,  and  actually  re- 
sulting in  an  injury  to  the  person  or  property  of  a  rival.  The  line  of 
demarkation  is,  in  this  matter,  no  more  difficult  of  ascertainment 
than  as  to  the  lawfulness  or  unlawfulness  of  many  other  things  of 
which  the  law  takes  note.  .  .  . 

It  is  urged  that  appellants  had  a  right  to  offer  to  the  parties  who 
were  doing  work  for  appellee,  a  greater  price  for  doing  similar  work 
for  them,  appellants,  than  appellee  was  paying,  and  a  right  to  ask 
such  persons  to  give  up  appellee's  work,  and  that  to  do  that  of  appel- 
lants, would  be  found  more  profitable ;  that  this  was  but  the  carrying 
on,  by  the  appellants,  of  their  own  business,  and  in  the  line  of  legiti- 
mate competition  with  appellee,  who  was  engaged  in  the  same 
business. 

It  is  not  for  the  doing  of  this,  merely,  that  the  present  action  was 
brought.  As  has  been  already  stated,  the  declaration  charges  and  the 
jary  have  found  that  the  defendants  conspired  together,  and  induced 
parties  to  break  their  contracts  with  appellee,  and  to  refuse  to  do 
business  with  her,  for  the  purpose  of  breaking  up  and  destroying  the 
business  of  appellee;  that  the  action  of  appellants  in  this  regard  was 
malicious,  and  was  an  attempt  to  ol)tain  for  themselves  the  business 
which  appellee  was  doing,  not  ])y  legitimate  competition,  but  for  the 
purpose  only,  of  destroying  the  business  of  appellee.  That  an  action 
may  be  maintained  for  the  malicious  interference  with  the  business 
of  another,  his  occupation,  j)rofession,  or  way  of  o})taining  a  liveli- 
hood, lilts  for  many  years  ))een  recognized  by  Ihc  law;  as  when*  the 
plaintiff  is  the  owner  of  a  decoy  for  catching  wild  fowl,  and  the  de- 
fendant, without  entering  upon  the  plaintiff's  land,  fires  off  guns  near 


I 


SECT.   II]  LAW    (JK    CONSPIRACY  61 

to  the  decoy,  and  fiinlitcns  wild  fowl  away  from  it;  where,  also,  if  a 
man  menaces  the  tenants  at  will  of  an(jther,  of  life  or  memlx-r,  so 
that  they  dei^art  from  their  tenures,  an  action  on  the  case  Ues  against 
him.   .   .   . 

While  no  civil  action  lies  for  the  mere  conspiracy,  whenever,  in 
pursuance  of  an  unlawful  combination  to  defame  or  injure  another  in 
his  particular  avocation  or  business,  means  have  been  employed  which 
tended  to  effectuate,  and  to  a  greater  or  less  extent  did  accomplish, 
the  ol)ject  of  the  conspirators,  an  action  on  the  ca.se  will  lie.  Wilder  v. 
McKee,  111  Penn.  St.  :i35;  Place  v.  Min.ster  et  al.,  (35  N.  Y.  89-95; 
Cooley  on  Torts,  Second  Ed.,  142;  Webb's  Pollock  on  Torts,  pp.  401, 
671-072;  Walker  v.  Cronin,  117  Ma.ss.;  Bacon's  Ab.,  Actions  on  the 
Ca.se,  f. 

Ap[)(^llee's  action  is  not  a  mere  proceeding  to  recover  danuif^es  of 
appellants,  becau.se  they  induced  certain  persons  to  break  their  con- 
tracts with  her;  her  action  is  for  damages  by  her  sustained  in  conse- 
quence of  the  malicious  destruction  and  ruin  of  her  business  by 
appellants,  in  pursuance  of  their  conspiracy  so  to  tlo. 

In  proof  of  such  charges,  she  shows  that  for  the  purpose  of  breaking 
up  and  ruining  her  business,  they  did,  in  pursuance  of  a  preconcerted 
plan,  induce  various  persons  to  break  their  contracts  with  her,  and 
did  persuade  many  pei-sons  to  refuse  to  do  work  f(jr  her,  as  a  conse- 
quence of  which  her  customers  were  lost  and  her  business  destroyed. 
The  conspiracy  charged  and  proven  is  only  a  matter  of  inducement, 
or  evidence;  it  is  the  acts  thereunder  actually  done  by  appellants,  and 
the  damage  suffered  in  consequence  thereof  by  apix>llee,  that  is  the 
gist  of  this  action. 

Taking  the  instructions  given  by  the  court  below  as  a  whole,  we 
think  appellants  have  no  just  cause  for  complaint  thereon. 

In  such  an  action  as  this,  where  the  gist  of  the  plaintiff's  suit  is  the 
damage  that  has  resulted  from  the  malicious  acts  of  the  defendants, 
punitive  damages  may  be  unposed  by  the  jiuy.  The  amount  of  such 
damage  is,  within  w'ide  limits,  a  matter  of  discretion  for  the  jury. 

For  these  and  other  considerations  already  mentioned,  we  see  no 
sufficient  reason  for  interfering  with  the  verdict  of  the  jury,  sanctioned 
as  it  has  been  by  the  juilge  Ix^fore  whom  the  case  was  tried. 

The  judgment  of  the  Circuit  Court  is  affiiTued.' 

'  This  dcri.sion  wa.s  affirmed  in  170  111.  008. 

In  Savile  v.  Robert.-^,  1  Lil.  Hay  in.  'M-\,  at  p.  .'?78,  it  was  .said:  '".Xn  a(tiv>n  will 
not  lie  for  the  greatest  ronspiracy  iinafiinahle,  if  nothing  he  put  in  execution;  but 
if  the  party  be  damaged  the  action  will  lie."  In  Martens  r.  Heilly,  101)  Wis.  404,  at 
p.  472,  Marshall,  .I.,s;iid:  "In  a  civil  action  against  members  of  a  conspinicy  for 
the  recovery  of  damages,  unlike  a  criminal  action,  the  gist  thereof  is  the  damage, 
not  the  consi)iracv.  Smith  v.  Nippert,  7()  Wis.  80;  Hutchins  v.  Hutchins,  7  Hill, 
104;  Bush  v.  Si)rague,  .")1  Mich.  41;  CJaring  r.  Fraser,  70  Mc.  37;  East  Mis.souri  v. 
Horseman,  10  U.  C.  Q.  H.  5.')0;  Kimball  c.  Hurman.  34  Md.  407;  Lcverty  r. 
Vanarsdale,  05  Pa.  8t.  507;  McHenrA-  r.  Sneer,  50  Iowa,  049;  .Viller  r.  Fenton, 
24  How.  407;  Cooley,  Torts  (2d  ed.),  125."  See  particularly,  .\dler  r.  Fenton, 
24  How.  407.  —  Ed.  " 


62  LEGALITY    OF    COMBINATION  [CHAP.  II 

BOHN  IVIANUFACTURING  CO.  v.  HOLLIS 
Supreme  Court  of  Minnesota.     1893 

54  Minn.  223 

Appeal  by  defendants,  W.  G.  Hollis  and  the  Northwestern  Lum- 
l)ermen's  Association,  from  an  order  of  the  District  Court  of  Ramsey 
County,  W.  D.  Cornish,  J.,  made  December  27,  1892,  refusing  to 
dissolve  an  injunction. 

In  the  year  1890  a  large  number,  about  one-half,  of  the  retail  dealers 
in  limiber  in  Iowa,  ^Minnesota,  Nebraska,  and  the  Dakotas  associated 
together  under  the  name  Northwestern  Lumbennen's  Association  and 
adopted  a  constitution  and  by-laws.  Their  principal  place  of  business 
was  St.  Paul.  They  employed  defendant  W.  G.  Hollis  as  secretary. 
Some  of  their  by-laws  were  as  follows : 

Sec.  3.  Whenever,  and  as  often  as,  any  wholesale  dealer  shall  sell 
lumber,  or  any  article  manufactured  from  lumber  and  generally  sold 
by  retail  lumber  dealers,  to  any  person  not  a  regular  dealer,  any  mem- 
ber doing  business  in  the  town  to  which  such  shipments  are  made, 
must  notify  the  secretary  of  this  association  within  thirty  days  after 
the  arrival  of  the  shipment  at  the  point  of  destination,  who  thereupon 
shall  notify  the  manufacturer  or  wholesale  dealer  who  made  such 
shipment  that  he  has  a  claim  of  ten  per  cent  of  the  value  of  such  sale 
at  the  point  of  shipment,  against  him  for  such  shipment.  If  the  secre- 
tary is  unable  to  adjust  such  claim  either  by  correspondence  or  by 
personal  presentation  of  the  case,  he  shall  refer  the  matter  to  the 
Board  of  Directors,  whose  duty  it  shall  be  to  hear  both  sides  of  the 
case  and  determine  the  claim.  If  the  manufacturer  or  wholesale 
dealer  refuses  to  abide  by  the  decision  of  the  Board  of  Directors,  it 
shall  be  the  duty  of  the  secretary  to  immediately  notify  the  members 
of  the  Association,  stating  the  name  of  such  wholesale  dealer  or  manu- 
facturer. If  any  member  continues  to  deal  with  such  wholesale  dealer 
or  manufacturer,  he  shall  be  expelled  fi-om  the  Association. 

Sec.  3^.  The  provisions  of  section  three  shall  also  apph'  to  man- 
ufacturers or  wholesalers  who  ship  to  contractors  or  consumers  on  the 
order  of  dealers  not  members  of  the  Association,  at  points  where  said 
dealers  do  not  maintain  a  retail  yard,  and  where  a  member  of  the 
Association  is  located.  .  .  . 

Sec.  6.  The  secretary  shall  prepare  and  cause  to  be  published, 
every  three  months,  a  list  of  all  the  members  of  this  Association  both 
active  and  honorary,  and  mail  the  same  to  all  retail  dealers.  Also  the 
list  of  all  wholesale  dealers  and  manufacturers  of  lumber  who  shall 
refuse  to  comply  with  the  rules  prescribed  in  section  3  of  the  b3^-laws, 
and  mail  one  of  each  of  such  lists  to  the  members  of  this  Association. 

The  plaintiff,  Bohn  Manufacturing  Company,  a  corporation  deal- 
ing in  lumber  at  wholesale  at  St.  Paul,  sold  in  1891  to  one  Rakestraw, 
who  was  not  a  tleak;r,  lumber  for  his  own  use  to  the  value  of  $819.85, 


SECT.  II]  LAW    OF   CONSPIRACY  63 

to  he  shipped  to  Worlhinjrton;  :iikI  sold  to  Father  Plut  uiKjthor  hill  of 
luinhcr  of  tlic  vahic  (jf  .s-ill.Oy,  t<j  he  sliipjx'd  to  New  llm  for  a 
CatlH^Hc  church.  The  Association,  hcaiin^  of  these  sales,  demanded 
of  the  plaintilT  ten  p<'r  cent  of  the  anunuit  of  the  two  sales,  S12G.45, 
and  threatened,  unless  this  suiu  wa.s  paid,  t(j  notify  each  nienilxT  of 
the  Association  of  the  sales  and  refusal,  puixuant  to  said  by-laws. 

Thereupon  plaintilT  conuneni-ed  this  action,  charging  that  liollis 
and  tlu!  other  nKinl)ei*s  of  the  Association  had  entered  into  a  combina- 
tion and  conspiracy  to  monopolize  antl  restrain  trade  in  lumber,  and 
to  fix  and  control  prices  and  conijx'l  dealei-s  and  consmners  to  pay  the 
prices  so  fixed,  anil  to  limit  the  retail  trade  in  luml>er  to  its  own  mem- 
bers, and  to  extort  money  from  any  wholesale  dealer  who  should  deal 
directly  with  the  consumer,  and  to  compel  all  wholesale  dealers  to 
join  the  Association  and  act  and  deal  only  with  its  mcmbei-s.  Plaintiff 
further  charfj;ed  that  the  defendants  antl  various  persons  unknown  to 
it  have  secretly  and  solemnly  bound  themselves  under  jK-nalties  to 
compel  plaintitT  antl  all  othei-s  similarly  situated  to  sell  lumber  only 
to  them,  and  to  wreck,  and  destroy  their  business,  if  they  sold  to 
others  not  members  of  the  Association.  The  plaintiff  prayed  an  in- 
junction, restraininfz;  defendants  from  issuin^^  such  notice,  and  from 
stating  or  mailing  any  matter  that  might  tend  to  injure  plaintifT's 
trade  or  business,  and  from  combining  with  othei"s  to  hinder  or  limit 
its  sales  and  transactions  in  lumber. 

A  temporary  injunction  was  granted  ex  parte  May  17,  1892,  en- 
joining defendants  as  i)rayed.  The  tiefendants  obtained  an  order 
May  25,  1892,  requiring  the  plaintiff  to  show  cause  June  1,  1892,  why 
this  injunction  should  not  be  di.'^solved.  The  court  filed  its  order 
December  27,  1892,  refusing  to  dissolve,  and  from  that  order  this 
apixial  is  taken.  .  .  . 

Mitcui-:ll,  J.  The  pleadings  in  this  case,  and  the  affidavits  read  on  ■ 
the  motion  to  dissolve  the  temporary  injunction,  are  so  voluminous, 
and  so  abound  in  mere  inferences  as  to  motives  and  consequences,  and 
in  adjectives  and  other  qualifying  epithets,  as  to  convey  the  impres- 
sion, at  first  sigiit,  that  the  facts  were  both  complicated  and  con- 
troverted. But  a  careful  anal^'sis  of  the  record  proves  that  there  is  no 
real  dispute  as  to  the  material  facts,  which  are  comparatively  simple. 
Stripped  of  all  extraneous  matter,  the  ca.se  discloses  just  this  state  of 
facts:  The  jilaintifT  is  a  manufacturer  and  vendor  of  luml)er  antl  other 
building  mat(Mial,  having  a  large  and  profitable  trade  at  wholesale  and 
retail  in  this  and  adjoining  states,  a  large  and  valuable  part  of  this 
trade  being  with  the  retail  lumber  dealers.  The  defendant  the  North- 
western Lumbermen's  A.ssociation  is  a  voluntary  a.ssociatit)n  of  retail 
lumi)er  ilealers,  comprising  from  twenty-five  to  fifty  per  cent  of  the 
retail  dealers  doing  business  in  the  states  referred  to,  many  of  whom 
are,  or  have  been,  customers  of  the  plaintilT.  A  "retailer,"  as  de- 
fined in  the  constitution  of  the  association,  is  "any  jx'rson  who  is  en- 
gaged in  retailing  IuihIht,  wlio  carries  at  all  times  a  stock  of  lumlx^r 


64  LEGALITY   OF   COMBINATION  [CHAP.  II 

adequate  to  the  wants  of  the  community,  and  who  regularly  main- 
tains an  office  as  a  lumber  dealer,  and  keeps  the  same  open  at  proper 
times."  Any  wholesale  dealer  or  manufacturer  of  lumber  who  con- 
forms to  the  rules  of  the  association  may  become  an  honorary  mem- 
ber, and  attend  its  meetings,  but  is  not  allowed  to  vote.  The  object  of 
the  association  is  stated  in  its  constitution  to  be  "the  protection  of  its 
members  against  sales  by  wholesale  dealers  and  manufacturers  to  con- 
tractors and  consumers."  The  object  is  more  fully  stated,  and  the 
means  by  which  it  is  to  be  carried  into  effect  are  fully  set  out,  in 
sees.  3,  3|,  4,  and  6  of  the  by-laws,  which  are  all  that  we  consider  ma- 
terial in  this  case.  The  plaintiff  sold  two  bills  of  lumber  directly  to 
consumers  or  contractors  at  points  where  members  of  the  association 
were  engaged  in  business  as  retail  dealers.  Defendant  Hollis,  the 
secretary  of  the  association,  having  been  informed  of  this  fact,  notified 
plaintiff,  in  pursuance  of  sec.  3  of  the  by-laws,  that  he  had  a  claim 
against  it  for  ten  per  cent  of  the  amount  of  these  sales.  Considerable 
correspondence  with  reference  to  the  matter  ensued,  in  which  the 
plaintiff,  from  time  to  time,  promised  to  adjust  the  matter,  but  pro- 
crastinated and  evaded  doing  so  for  so  long  that  finally  Hollis  threat- 
ened that  unless  plaintiff  immediately  settled  the  matter  he  would 
send  to  all  the  members  of  the  association  the  lists  or  notices  provided 
for  by  sec.  6  of  the  by-laws,  notifying  them  that  plaintiff  refused  to 
comply  with  the  rules  of  the  association,  and  was  no  longer  in  sym- 
pathy with  it.  Thereupon,  plaintiff  commenced  this  action  for  a 
permanent  injunction,  and  obtained,  ex  'parte,  a  temporary  one,  en- 
joining the  defendants  from  issuing  these  notices,  etc.  This  appeal  is 
from  an  order  refusing  to  dissolve  the  temporary  injunction.  It  is 
alleged,  and  in  view  of  the  facts  must  be  presumed  to  be  true,  that  if 
these  notices  should  be  issued  the  members  of  the  association  would 
thereafter  refuse  to  deal  with  the  plaintiff,  thereby  resulting  in  loss  to 
it  of  gains  and  profits. 

The  case  presents  one  phase  of  a  subject  which  is  likely  to  be  one  of 
the  most  important  and  difficult  which  will  confront  the  courts  during 
the  ne.xt  quarter  of  a  century.  This  is  the  age  of  associations  and 
unions,  in  all  departments  of  labor  and  business,  for  purposes  of  mu- 
tual benefit  and  protection.  Confined  to  proper  limits,  both  as  to  end 
and  means,  they  are  not  only  lawful,  but  laudable.  Carried  beyond 
those  limits,  they  are  liable  to  become  dangerous  agencies  for  wrong 
and  oppression.  Beyond  what  limits  these  associations  or  combina- 
tions cannot  go,  without  interfering  with  the  legal  rights  of  others,  is 
the  problem  which,  in  various  phases,  the  courts  will  doubtless  be 
frecjuently  called  to  pass  upon.  There  is,  perhaps,  danger  that,  in- 
fluenced by  such  terms  of  illusive  meaning  as  "monopolies,"  "trusts," 
"boycotts,"  "strikes,"  and  the  like,  they  may  be  led  to  transcend  the 
limits  of  their  jurisdiction,  and,  like  the  Court  of  King's  Bench  in 
Bagg's  Case,  11  Coke,  9(Sa,  assume  that,  on  general  principles,  they 
have  authority  to  correct  or  rcfonn  everything  wluch  tiiey  may  deem 


SECT.  II]  LAW   OF   CONSPIRACY  05 

wrong,  or,  as  Lord  Ellsinore  puts  it,  "to  iiianago  the  state."  But 
wtuitever  doubts  or  elitticulties  may  arise  in  otiier  ca.ses,  presentinj: 
other  plnases  ol"  tlie  general  subject  involved  liere,  it  seems  to  us  that 
tliere  can  be  none  on  the  facts  of  tlje  present  ca.se.  iioth  the  affidavits 
and  brief  in  belialf  of  the  plaintiff  indulge  in  a  great  deal  of  strong,  and 
even  exaggerated,  a-sscrticMi,  and  in  many  words  and  expressioiLS  of 
very  indelinite  and  illusive  meaning,  such  as  "wreck,"  "coerce,"  "ex- 
tort," "conspiracy,"  "monopoly,"  "drive  out  of  business,"  and  the 
like.  This  looks  very  formidable,  but  in  law,  as  well  as  in  mathe- 
matics, it  simplihes  things  very  nmch  to  reduce  them  to  their  lowest 
terms.  It  is  conccdetl  tiiat  retail  lumi)er  yards  in  the  vari(jus  cities, 
towns,  and  villages  are  not  only  a  public  convenience,  but  a  public 
necessity;  also,  that,  to  enable  the  owners  to  maintain  these  yards, 
they  must  sell  their  lumber  at  a  reasonable  profit.  It  also  goes  with- 
out saying  that  to  have  manufacturers  or  wlujlesale  dealers  sell  at 
retail,  directly  to  consumers,  in  the  territory  upon  which  the  retail 
dealer  depends  for  his  customers,  injuriously  affects  and  demorahzes 
his  trade.  This  is  so  well  recognized  as  a  rule  of  trade,  in  every  de- 
partment, that  generally  wholesale  dealers  refrain  from  selling  at  re- 
tail within  the  territory  from  which  their  customers  obtain  their  trade. 
Now,  when  reduced  to  its  ultimate  analysis,  all  that  the  retail  hunter 
dealers,  in  this  case,  have  done,  is  to  form  an  association  to  protect 
themselves  from  sales  by  wholesale  dealers  or  manufacturers,  directly 
to  consumers  or  other  nondealers,  at  points  where  a  member  of  the 
association  is  engaged  in  the  retail  business.  The  means  adopted  to 
effect  this  object  are  simply  these:  They  agree  among  themselves 
that  they  will  not  deal  with  any  wholesale  dealer  or  manufacturer  who 
sells  directly  to  customers,  not  dealers,  at  a  point  where  a  member  of 
the  association  is  tloing  l)usiness,  and  provide  for  notice  being  given 
to  all  their  members  whenever  a  wholesale  dealer  or  manufacturer 
makes  any  such  sale.  That  is  the  head  and  front  of  defendants'  of- 
fense. It  will  be  observed  that  defendants  were  not  proposing  to  send 
notices  to  any  one  but  members  of  the  association.  There  was  no  ele- 
ment of  fraud,  coercion,  or  intimidation,  either  towards  plaintiff  or  the 
members  of  the  association.  True,  the  .secretary,  in  accordance  with 
sec.  3  of  the  by-laws,  made  a  demand  on  plaintiff  for  ten  per  cent 
on  the  amount  of  the  two  sales.  But  this  involved  no  element  of 
coercion  or  intimidation,  in  the  legal  sense  of  those  terms.  It  was  en- 
tirely optional  with  plaintiff  whether  it  would  pay  or  not.  If  it  valued 
the  trade  of  the  members  of  the  association  higher  than  that  of  non- 
dealers  at  the  same  points,  it  would  probal)ly  condutie  to  pay;  other- 
wise, not.  It  cannot  l)e  claimetl  that  the  act  of  making  this  demand 
was  actional )le;  much  less,  that  it  constituted  any  grountl  for  an  in- 
junction; and  hence  this  matter  may  be  laiil  entirely  out  of  view.  Nor 
was  any  coercion  proposed  to  be  brought  to  bear  on  the  members  of 
the  association,  to  prevent  them  from  trading  with  the  plaintiff.  After 
they  received  the  notices,  they  would  be  at  entire  liberty  to  traile  with 


66  LEGALITY   OF   COMBINATION  [CHAP.  II 

plaintiff,  or  not,  as  they  saw  fit.  By  the  provisions  of  the  by-laws,  if 
they  traded  with  the  plaintiff,  they  were  liable  to  be  "expelled";  but 
this  simply  meant  to  cease  to  be  members.  It  was  wholly  a  matter  of 
their  own  free  choice,  which  they  preferred,  —  to  trade  with  the 
plaintiff,  or  to  continue  members  of  the  association.  So  much  for  the 
facts,  and  all  that  remains  is  to  apply  to  them  a  few  well-settled, 
elementary  principles  of  law: 

1.  The  mere  fact  that  the  proposed  acts  of  the  defendants  would 
have  resulted  in  plaintiff's  loss  of  gains  and  profits  does  not,  of  itself, 
render  those  acts  unlawful  or  actionable.  That  depends  on  whether  the 
acts  are,  in  and  of  themselves,  unlawful.  "Injury,"  in  its  legal  sense, 
means  damage  resulting  from  an  unlawful  act.  Associations  may  be 
entered  into,  the  object  of  which  is  to  adopt  measures  that  may  tend 
to  diminish  the  gains  and  profits  of  another,  and  yet,  so  far  from  being 
unlawful,  they  may  be  highly  meritorious.  Commonwealth  v.  Hunt, 
4  Met.  (Mass.)  Ill;  Mogul  Steamship  Co.  v.  McGregor,  21  Q.  B.  Div. 
544. 

2.  If  an  act  be  lawful,  —  one  that  the  party  has  a  legal  right  to 
do,  —  the  fact  that  he  may  be  actuated  by  an  improper  motive  does 
not  render  it  unlawful.  As  said  in  one  case,  "the  exercise  by  one  maa 
of  a  legal  right  cannot  be  legal  wrong  to  another,"  or,  as  expressed  in 
another  case,  "malicious  motives  make  a  bad  case  worse,  but  they 
cannot  make  that  wrong  which,  in  its  own  essence,  is  lawful."  Hey- 
wood  IK  Tillson,  75  Me.  225;  Phelps  v.  Nowlen,  72  N.  Y.  39;  Jenkins  v. 
Fowler,  24  Pa.  St.  308. 

3.  To  enable  the  plaintiff  to  maintain  this  action,  it  must  appear 
that  defendants  have  committed,  or  are  about  to  commit,  some  un- 
lawful act,  which  will  interfere  with,  and  injuriously  affect,  some 
of  its  legal  rights.  We  advert  to  this  for  the  reason  that  counsel  for 
plaintiff  devotes  much  space  to  assailing  this  association  as  one  whose 
object  is  unlawful  because  in  restraint  of  trade.  We  fail  to  see  wherein 
it  is  subject  to  this  charge;  but,  even  if  it  were,  this  would  not,  of 
itself,  give  plaintiff  a  cause  of  action.  No  case  can  be  found  in  which 
it  was  ever  held  that,  at  common  law,  a  contract  or  agreement  in 
general  restraint  of  trade  was  actionable  at  the  instance  of  third 
parties,  or  could  constitute  the  foundation  for  such  an  action.  The 
courts  sometimes  call  such  contracts  "unlawful"  or  "illegal,"  but  in 
every  instance  it  will  be  found  that  these  terms  were  used  in  the  sense, 
merely,  of  "void"  or  "unenforceable"  as  between  the  parties;  the  law 
considering  the  disadvantage  so  imposed  upon  the  contract  a  sufficient 
protection  to  the  i)ublic.   Mogul  Steamship  Co.  v.  IMcCrcgor,  23  Q.  B. 

;Div.  598,  11892]  App.  Cas.  25. 

,  4.  What  one  man_niay  lawfully  do  singly,  two  or  more  may  law- 
fully agree'to  do  jointly.  The  number  who  unite  to  do  the  act  cannot 
change  its  character  from  lawful  to  unlawful.  Tlie  gist  of  a  private 
action  for  the  wrongful  act  of  many  is  not  the  combination  or  con- 
spiracy, but  the  damage  done  or  threatened  to  the  plaintiff  by  the  acts 


SECT.  II]  LAW   OF   CONSPIRACY  67 

of  the  dofcndants.  If  the  act  l>e  unlawful,  the  combinatif)n  of  many  to 
coniinit  it  may  af:;Kravate  the  injury,  hut  caiuiot  clmnt^e  the  character 
of  th(!  act.  In  a  few  cases  theic  may  he som*-  loose  remaiks  a{)i)arently 
to  the  contrary,  hut  they  evidently  have  their  orij^in  in  a  confused  and 
inaccurate  idea  of  the  law  of  criminal  conspiracy,  and  in  failing  to  dis- 
tinguish between  an  unlawful  act  and  a  criminal  one.  It  can  never  Ixi 
a  crime  to  combine  to  commit  a  lawful  act,  l)ut  it  may  l>e  a  crime  for 
seveial  to  conspire  to  commit  an  unlawful  act,  which,  if  done  by  one 
individual  alone,  although  unlawful,  wtnild  not  be  criminal.  Hence, 
the  fact  that  the  defendants  as.sociated  themselves  together  to  do  the 
act  complained  of  is  wholly  immaterial  in  this  ca.se.  We  have  referred 
to  this  for  the  reason  that  counsel  has  laid  great  stress  upon  the  fact 
of  the  combination  of  a  large  number  of  persons,  as  if  that,  of  itself, 
rendered  theii-  conduct  actionable.  Bowen  v.  Matheson,  14  Allen, 
499;  Mogul  Steamship  Co.  v.  McGregor,  23  Q.  B.  Div.  598,  [1892] 
App.  Cas.  2');  Piuker  c.  Huntington,  2  dray,  124;  Wellington  v.  Small, 
3  Cush.  145;  Payne  r.  Western  A:  Atlantic  II.  Co.,  13  Lea,  507. 

5.  With  these  propositions  in  mind,  which  bring  the  ca.se  down  to  a 
very  small  compass,  we  ccme  to  another  proposition,  which  is  entirely 
decisive  of  the  ca.se.  It  is  perfectly  bwful  for  any  man  (unless  under 
contract  obligation,  or  imless  his  employment  charges  him  with  some 
public  dut\')  to  refuse  to  work  for  or  to  deal  with  any  man  or  class  of 
men,  as  he  sees  fit.  This  doctrine  is  founded  upon  the  fundamental 
right  of  every  man  to  conduct  his  own  business  in  his  own  way,  sub- 
ject only  to  the  condition  that  he  docs  not  interfere  with  the  legal 
rights  of  others.  And,  as  has  been  alreatly  said,  the  right  which  one 
man  may  exercise  singly,  many,  after  consultation,  may  agree  to  exer- 
cise jointly,  and  make  simultaneous  declaration  of  their  choice.  This 
has  been  repeatedly  held  as  to  associations  or  unions  of  workmen,  and 
as.sociations  of  nuni  in  other  occupations  or  lines  of  business  must  l^e 
governed  l)y  the  same  principles.  Summed  up,  and  stripped  of  all 
extraneous  matter,  this  is  all  that  defendants  have  done,  or  threatened 
to  do,  and  we  fail  to  see  anything  unlawful  or  actionable  in  it.  Com- 
monwealth V.  Hunt,  su])ra;  Carew  v.  Rutherford,  106  Mass.  1;  Mogul 
Steamsiiip  Co.  c.  McCregor,  [1892]  App.  Cas.  25. 

Order  reversed,  and  injunction  dissolved. 

Vanderburgh,  J.,  absent,  took  no  part.^ 

^  See  Webb,  History  of  Trade  Unionism  (1920  ed.),  pp.  597-599  for  an  account 
of  how  the  doctrine  of  Civil  Conspiracy  was  applied  by  English  courts  to  labor 
cases  between  1S75  and  190G.  —  Ed. 


68  LEGALITY    OF    COMBINATION  [CHAP.  II 

Section  3.   Restraint  of  Trade 

CLAYGATE  v.  BATCHELOR 
Common  Bench.     1601 
Owen,  143 
In  debt  upon  a  bond  of  thirty  pound,  the  condition  was,  that  if 
Robert  Batchelor,  son  to  the  defendant,  did  use  the  trade  of  haber- 
dasher as  journe;yT3ian  servant,  or  apprentice,  or  as  a  master,  within 
the  county  of  Kent,  within  the  Cities  of  Canterbury  and  Rochester, 
within  four  years  after  the  date,  that  then,  if  he  pay  twenty  pound 
upon  request,  the  obhgation  to  be  voyd.  And  all  the  justices  agreed 
that  the  condition  was  against  law,  and  then  all  is  voyd,  for  it  is 
against  the  liberty  of  a  free-man,  and  against  the  statute  of  Magna 
Carta  cap.  20,  and  is  against  the  commonwealth,  2  H.  5  &  5.    And 
Anderson  said,  that  he  might  as  well  bind  himself,  that  he  would  not 
go  to  church.    And  judgment  was  given  against  the  plaintiff.^ 

ANONYMOUS  CASE  427 
King's  Bench.     1698 
12  Mod.  248. 
Leave  was  granted  to  file  an  information  against  several  plate- 
button  makers,  for  combining,  by  covenants,  not  to  sell  under  a  set 
rate. 

I    Holt,  Chief  Justice.    It  is  fit  that  all  confederacies,  by  those  of 
trade  to  raise  their  rates,  should  be  suppressed. 

AN  ACT  AGAINST  REGRATORS,  FORESTALLERS  AND 

INGROSSERS 

5  &  6  Edw.  VI,  c.  14  (1552) 

Sec.  1.  Be  it  enacted  etc.,  .  .  .  That  whatsoever  Person  or  Persons,  that  after 
the  first  Day  of  May  next  coming  shall  buy  or  cause  to  be  bought,  any  Mer- 
chandise, Victual  or  anj'  other  Thing  whatsoever,  coming  by  Land  or  by 
Water  toward  any  Market  or  Fair  to  be  sold  in  the  same,  or  coming  toward 
any  City,  Port,  Haven,  Creek  or  Road  of  this  Realm  or  Wales,  from  any  Parts 
beyond  the  Sea  to  be  sold;  or  make  any  Bargain,  Contract  or  Promise,  for  the 
having  or  buying  of  the  same  or  any  Part  thereof  so  coming  as  is  aforesaid, 
before  the  said  Merchandise,  Victuals  or  other  Things,  shall  be  in  the  Market, 
Fair,  City,  Port,  Haven,  Creek  or  Road,  ready  to  be  sold;  or  shall  make  any 
Motion  by  Word,  Letter,  Message  or  otherwise,  to  any  Person  or  Persons,  for 

'  In  the  early  Anonymous  Case  in  Y.  B.,  2  Hon.  V,  f.  5,  pi.  26,  decided  in  1414, 
there  was  an  action  of  debt  upon  an  obligation  with  a  condition  against  the  use  of 
the  art  of  dyer's  craft  within  a  town  for  a  certain  time.  Hull  |.l.]  interrupted 
counsel  with:  "In  my  opinion  you  minht  have  doinurrod  ui)on  him,  that  the 
obligation  is  void,  for  that  the  ohlip;ation  is  aRainst  the  coininoii  law,  and  l)y  Cod 
if  the  plaintiff  were  here,  he  should  go  to  pri.son  until  he  paid  a  line  to  the  king." 


SECT.  Ill]  RESTRAINT   OF    TRADE  69 

the  inhuricirig  of  the  Price  or  dearer  seHing  of  any  Thing  or  Things  above- 
iiioriti(jnod;  or  else  disswade,  move  or  stir  any  Person  or  Persons  coming  to 
the  Market,  or  the  Fair,  U)  abstain  or  forlxiar  t<j  bring  (jr  convey  any  of  the 
Things  above  rehearsed,  t(j  any  Market,  Fair,  City,  Port,  Haven,  Creek  or 
Road  to  Ix;  sold,  jis  is  aforesaid,  shall  be  deemed,  taken,  and  adjudged  a  Fore- 
staller. 

Stjc.  2.  Further  Ik'  it  enacted  anil  declared  by  the  Authority  aforesaid,  That 
whatsoever  Pers(jn  or  Persons,  that  after  the  said  first  \k\.y  of  Mdij  shall  by 
any  Means  regratc,  obtain,  or  get  into  his  or  their  Hands  (jr  Possession,  in  any 
Fair  or  Market,  any  Corn,  Wine,  Fish,  Butter,  Cheese,  Candles,  Tallow, 
Sheep,  Lambs,  Calves,  Swine,  Pigs,  Geese,  Capons,  Hens,  Chickens,  Pigeons, 
Conies,  or  other  dead  \'ictual  whatsoever,  that  shall  Ix;  brought  to  any  Fair 
or  Market  within  this  Heahn  or  Walts  to  be  sold,  and  tl(j  sell  the  same  again 
in  any  Fair  or  Market  holdeii  or  kept  in  the  same  Place,  or  in  any  other  Fair 
or  Market  within  four  Miles  thereof,  shall  be  accepted,  reputed  and  taken  f(jr 
a  Ilegi'ator  or  Regnitors. 

Sec.  3.  And  be  it  also  enacted  and  dedanMl  by  the  Authority  aforesaid, 
That  whatsoever  Person  or  Persons,  that  after  the  said  first  Day  of  May  shall 
ingross  or  get  into  his  or  their  Hands,  by  buying,  contracting  or  promise-taking 
other  than  by  Demise,  Grant,  or  Letuse  of  Land  or  Tithe,  any  Corn  growing  in 
the  Fields,  or  any  other  Corn  or  (Jrain,  Butter,  Cheese,  Fish,  or  other  dead 
Victuals  whatsoever,  within  the  Realm  of  England,  to  the  Intent  to  sell  the 
same  again,  shall  be  accepted,  reputed  and  taken  an  unlawful  Ingrosser  or 
Ingrossers.*  .  .  . 

ACT  FOR  REPEALING  CERTAIN  LAWS  AGAINST  ENGROSSERS, 
FORESTALLERS  AND  REGR.\T0R3 
12  Geo.  Ill,  c.  71  (1772) 

Whereas  it  hath  been  found  by  experience,  that  the  restraints  laid  by 
several  statutes  upon  the  dealing  in  corn,  meal,  Hour,  cattle,  and  sundry  other 
sorts  of  victuals,  by  preventing  a  free  trade  in  the  saitl  commodities,  have  a 
tendency  to  discourage  the  growth,  and  to  enhance  the  price  of  the  same; 
which  statutes,  if  put  in  execution,  would  bring  a  great  distress  upon  the  in- 
habitants of  many  parts  of  this  kingdom,  and  in  particular  upon  those  of  the 
cities  of  London  and  Westminster;  be  it  therefore  enacted  .  .  .  that  an  act, 
made  ...  in  the  fifth  and  sixth  year  of  King  Edward  the  Sixth,  intituled, 

•  "It  was  upon  conference  and  mature  deliberation  resolved  by  all  the  justices, 
that  any  merchant,  sul)jcct,  or  stranger,  brinj^inn  victuals  or  merchandize  into 
this  reahne,  may  sell  them  in  grosse;  i)ut  that  vendee  cannot  sell  them  againe  in 
KTOSse,  for  then  he  is  an  ingrosser  according  to  the  nature  of  the  word,  for  that 
he  buy  ingrosse,  and  sell  ingrosse,  and  may  be  indicted  thereof  at  the  rommon  law, 
as  for  an  offence  that  is  malum  in  se.  2.  That  no  merchant  or  any  other  may  buy 
within  the  realmc  any  victuall  or  other  merchandize  in  grosse,  and  s«^ll  the  same 
in  grosse  againe,  for  then  he  is  an  ingrosser,  and  punishable,  iit  supra;  for  by  this 
means  the  prices  of  victuals  and  other  merchandize  shall  Ik*  enhanced,  to  the 
grievance  of  the  subject;  for  the  more  hands  they  passe  through,  the  dearer  they 
grow,  for  every  one  thirsteth  after  gaine,  ritiosum  siliuitt  lucrum."  —  Coke,  Third 
Institute,  p.  195  (U)28). 

Upon  the  subject  of  forestalling,  engrossing,  and  regrating,  see  Hawkins,  P.  C, 
Hk.  I,  Chap.  80;  Stei)hen,  History  of  the  Criminal  Ljiw,  vol.  3,  pp.  199-202; 
Eddy,  Combinations,  sees.  3G-70. 


70  LEGALITY   OF   COMBINATION  [CHAP.  II 

An  act  against  regrators,  forestallers,  and  engrossers;  ,  .  .  and  all  acts  made 
for  the  better  enforcement  of  the  same  being  detrimental  to  the  supply  of  the 
labouring  and  manufacturing  poor  of  this  kingdom,  shall  be,  and  the  same  arc 
hereby  declared  to  be  repealed.^ 


REX  V.  WADDINGTON 
King's  Bench.     1801 

1  East,  143 

.  .  .  The  fourth  count-  charged  that  the  defendant  unlawfully  en- 
grossed and  got  into  his  hands  by  buying  a  certain  large  quantity  of 
hops,  viz.,  100  pockets  of  hops  of  one  W.  G.  (and  so  on  of  above  30 
other  persons,  naming  them),  at  certain  large  prices,  viz.,  15Z.  for  each 
100  cwt.  with  intent  to  re-sell  the  same  for  an  unreasonable  profit, 
and  thereby  to  enhance  the  price  of  hops.  .  .  . 

Grose,  J.  The  defendant  has  been  found  guilty  upon  an  informa- 
tion charging  him  with  having  put  in  practice  divers  methods  specified 
in  the  several  counts,  for  the  purpose  of  enhancing  the  price  of  hops. 
It  appears  from  the  evidence,  that  he  being  a  merchant  living  in  a 
distant  county  (the  county  of  Kent),  in  the  months  of  March  and 
April  last  went  to  the  city  of  Worcester,  where  was  held  a  considerable 
market  for  hops.  That  upon  his  arrival  there  the  state  of  the  market 
was,  to  use  the  expression  of  one  of  the  witnesses  and  which  is  intel- 
ligible, very  slack;  that  the  stock  of  hops  in  that  county  was  then  very 
considerably  more  than  sufficient  to  answer  the  current  demand;  and 
that  there  was  then  a  prospect  of  their  being  lower.  The  price  in  the 
January  preceding  had  been  between  15^  and  16Z.  per  cwt.,  the  mar- 
ket price  in  March  was  from  111.  to  13^  per  cwt.  so  low  that  the 
defendant  thought  fit  to  observe  upon  it,  and  state  publicly  in  the 
market,  which  was  very  full,  that  the  low  price  of  hops  was  owing  to 
a  prosecution  instituted  against  him.  It  appears  that  he  then  assured 
the  by-standers,  whether  truly  or  not  he  best  knew,  that  the  prosecu- 
tion against  him  was  dropped,  and  that  of  course  hops  must  rise 
again.  Nothing  however  of  that  sort  was  proved;  and  therefore  the 
ground  of  the  assertion,  that  hops  would  of  course  rise  again,  seems  to 
have  been  not  perfectly  correct.  He  then  further  asserted,  that  the 
stock  of  hops  in  the  hands  of  the  brewers  was  nearly  exhausted  (an 
assertion  for  which  there  did  not  appear  any  foundation) ;  and  further, 
that  very  soon  they  must  come  to  him  or  to  the  hop-planters  for  hops; 

'  "This  act  left  the  common  law  against  forestalling  and  regrating,  and  all  the 
statutes  upon  the  subject  older  than  Edward  VI,  in  full  force,  nor  did  these  laws 
become  by  any  means  a  dead  letter.  Prosecutions  for  forestaUing  and  regrating 
lasted  into  the  present  century."  —  Stejjhen,  History  of  the  Crim.  Law,  vol.  3, 
p.  201.  The  common  law  offences  of  "l)adgering,  engrossing,  forestalling,  and 
regniting"  were  finally  abolished  in  England  by  the  Act  of  7  «fe  8  Vict.  c.  24 
(1844). 

^  Other  counts  are  omitted.  —  Ed. 


SECT.  Ill]  RESTRAINT  OF   TRADE  71 

that  hf)i).s  would  bo  at  20/.  per  e\vt.;  and  that  tho  hop-plantcrs  might 
d('i)cnd  on  liis  assistance  to  keep  thcni  up.  From  thence  it  ajjix-ars 
that  the  defendant  liad  a  stock  of  hops  in  Fiand;  and  that  it  was  his 
intention  not  only  to  keep  up  the  price  in  his  own  dealings,  but  to  assist 
(jthers  in  doing  the  like,  until  tliat  commodity  which  was  then  be- 
tween III.  and  I'M  per  cwt.  should  rise  to  20/.  jxt  cwt.  To  effect  this 
he  entered  into  contracts  to  purchase  200  ix)ckets  at  12/.  lO.s.  jx-r  cwt. 
that  day,  and  200  pockets  each  succeeding  market  advancing  each 
market,  till  the  price  should  arrive  at  15/.  per  cwt.;  and  so  lx.'come  a 
purchaser  of  one  fifth  of  the  produce  of  Worcestei-shire  and  Hereford- 
shire at  a  nuich  higher  price  than  that  at  which  hops  were  when  he 
arrived  at  Worcester.  In  the  present  state  of  what  is  called  paper 
credit,  human  ingenuity  could  not  invent  a  more  certain  mode  of 
enhancing  the  price  of  a  commodity.  And  at  the  same  time  he  urged 
the  dealers  in  hops  either  not  to  l)ring  them  to  market,  or  if  they  did, 
not  to  sell  them  at  a  less  price  than  he  offered  to  give,  which  was 
greater  than  any  price  asked  on  that  day.  This  was  done  in  an  exten- 
sive market  at  Worcester,  from  whence,  as  it  appeared,  the  northern 
markets  principally  received  their  supply.  The  conse(|uences  of  such 
conduct  might  be  easily  foreseen,  and  were  soon  felt;  hops  whicli  had 
been  offered  to  be  delivered  on  a  day  in  May  at  13/.  per  cwt.  were  on 
the  same  day  sold  at  15/.;  and  so  the  market  continued  to  vary  to  the 
end  of  June.  The  sum  then  of  the  offence  is,  that  the  defendant,  a 
inercliant  of  credit  and  affluence  in  Kent,  having  a  stock  of  hops  in 
hand,  went  to  the  market  at  Worcester,  not  to  buy  hops,  for  that  he 
disclaimed,  nor  to  sell  them,  for  upon  the  evidence  it  does  not  appear 
that  he  offered  any  for  sale,  but  merely  to  speculate  how  he  could  en- 
hance the  price  of  that  commodity.  And  for  that  purpose  he  declared 
to  the  sellers  that  hojis  were  too  cheap,  and  to  the  hoj)-planters  that 
they  had  not  a  fair  price  for  their  hops;  and  lest  he  should  l)e  defeat-ed 
in  his  speculation  to  raise  the  price  of  a  falling  market,  he  contracted 
for  one  fifth  of  the  produce  of  two  counties,  when  he  had  a  stock  in 
hand,  and  admitted  that  he  did  not  want  to  purchase.  .   .  . 

In  mitigation  of  punishment  the  Court  has  been  repeatedly  and 
strongly  addressed  upon  the  freedom  of  trade;  as  if  it  were  requisite  to 
support  the  freedom  of  trade  that  one  man  shall  be  pennitted  for  his 
own  private  emolument  to  enhance  the  price  of  commodities  become 
necessaries  of  life,  and  therel)y  possil)ly  prevent  a  larg(>  portion  of  his 
majesty's  subjects  from  jnu-chasing  those  necessaries  at  all.  The 
freedom  of  trade,  like  the  lilxM-ty  of  the  press,  is  one  thing;  the  abuse 
of  that  freedom,  like  the  licentiousness  of  the  press,  is  another.  God 
f()rl)id  that  this  court  should  do  any  thing  that  should  interfere  with 
the  legal  fn^edom  of  trade.  In  support  of  it  the  law  has  declared,  and 
that  law  has  repeatedly  been  actecl  upon,  that  to  violate  the  freeilom 
of  trade  by  intercepting  commodities  in  their  way  to  market,  taking 
tiiem  from  the  owner  by  force,  or  which  is  the  same  thing,  obliging 
him  to  accept  a  less  price  than  he  dtiuMnds,  and  carrying  them  away 


72  LEGALITY    OF    COMBINATION  [CHAP.  II 

against  his  will,  or  committing  the  like  violation  upon  him  in  the 
market,  is  a  capital  offence,  for  which  men  have  forfeited  their  lives  to 
the  law;  for  the  law  so  far  protects  the  freedom  of  trade  as  to  encourage 
men  to  bring  their  goods  to  market,  by  punishing  those  who  by  acts  of 
violence  deter  others  from  so  doing.  But  the  same  law  that  protects 
the  proprietors  of  merchandize  takes  an  interest  also  in  the  concerns 
of  the  public,  by  protecting  the  poor  man  against  the  avarice  of  the 
rich;  and  from  all  time  it  has  been  an  offence  against  the  public  to 
commit  practices  to  enhance  the  price  of  merchandize  coming  to  mar- 
ket, particularly  the  necessaries  of  hfe,  for  the  purpose  of  enriching  an 
individual.  The  freedom  of  trade  has  its  legal  limits.  .  .  .  Looking 
into  our  books,  we  find  that  the  commission  of  the  offence  stated  in  the 
information  is  a  crime  entitled  to  the  serious  attention  of  a  court  of 
justice,  and  that  we  are  bound  to  treat  it  as  such. 

But  it  is  urged  that  the  defendant,  knowing  that  the  statutes  of  the 
3  &  4  Ed.  6,  and  5  &  6  of  the  same  reign,  and  other  subsequent 
statutes  were  repealed  by  the  stat.  12  Geo.  3,  c.  71,  supposed  that 
engrossing,  forestalling,  regrating,  and  every  other  offence  by  which 
men  attempt  wilfully  and  unnecessarily  to  enhance  the  price  of  neces- 
saries of  life  and  other  merchandizes,  ceased  to  be  offences  in  the  eye 
of  the  law.  This  argument  supposes  him  to  have  read  that  statute, 
and  those  which  it  repealed ;  and  either  to  have  considered  the  several 
laws  upon  the  subject,  or  advised  with  others  who  have  had  a  better 
opportunity  so  to  do.  Supposing  him  to  have  done  this,  the  answer  is, 
that  that  statute,  of  which  he  claims  the  benefit,  does  not  apply  to  his 
case.  That  statute  does  not  say  that  such  acts  as  this  defendant  has 
committed  shall  cease  to  be  criminal.  The  effect  of  it  only  is,  that  for 
the  commission  of  certain  crimes  specified  in  certain  statutes  (which 
are  declaratory  statutes,  and  consider  the  crimes  therein  mentioned  as 
crimes  at  common  law),  a  man  shall  not  be  liable  to  certain  penalties 
and  punishments  specified  in  those  statutes.  But  this  may  be  con- 
sidered as  the  answer  of  men  bred  to  the  law.  A  better  answer  is,  that 
this  information  is  not  exhibited  for  any  offence  contained  in  the 
statutes  repealed.  That  the  offence  of  which  the  defendant  has  been 
convicted  is  a  direct  violation  of  the  rules  of  just  and  honourable  trade, 
which  encourages  every  one  to  bring  his  goods  to  market  and  dispose 
of  them  to  the  best  bidder.  That  the  defendant  has  been  guilty  of 
using  the  undue  means  stated  in  the  information  for  the  purpose  of 
obtaining  an  excessive  and  exorbitant  price,  higher  than  any  that  was 
d(>mandcd  at  the  market,  which  he  attended,  for  the  commodity  in 
which  he  dealt;  by  which  means  a  temporary  fictitious  scarcity  was 
likely  to  be  produced,  and  the  price  of  the  commodity  unnecessarily 
and  unreasonal)ly  raised  upon  the  public.  And  in  truth  it  nuist  have 
occurred  to  any  person  considering  the  effect  of  the  statute  12  Geo.  3, 
how  improbable  if  not  impossi))le  it  was  that  the  legislature  of  a  great 
and  populous  kingdom,  ever  anxious  to  provide  for  the  most  neces- 
sitous objects  ill  it,  should  have   intended   by  this  statute   to  have 


SECT,  irr]  RESTR AIN'T   OF   TRADE  73 

taken  from  the  lower  and  nuddlin^  classes  of  men  that  security  against 
the  unnecessary  liijih  |)rice  of  provisions,  which  the  common  law  in- 
tended to  j^ive  them;  and  not  (Jiily  t(i  op<'n  a  door,  but  thnnv  out  a 
temptation  to  rich  men  to  speculate  upon  the  price  of  the  necessaries 
of  life  at  the  risk  and  exfjence  of  the  poor.  Any  argument  therefore 
derived  from  the  defendant's  consideration  of  the  statute  of  (leo.  3, 
if  duly  considered,  can  operate  little  in  mitigation  <»f  his  sentence; 
especially  wiien  it  is  recollected  that  his  attention  to  and  conduct  on 
the  subject  were  awakened  by  the  first  application  against  him  in  this 
court;  and  that  subsecjuent  to  it,  in  neglect  at  least  if  not  in  defiance 
of  the  consetjuences,  the  facts  on  whicii  this  prosecution  is  f(junded 
were  connnitted. 

The  Court  having  taken  into  consideration  the  nature  and  extent 
of  the  offence,  and  the  time  at  which  it  was  conmiitted,  when  a 
punishment  is  peculiarly  called  for  that  may  operate  a.s  an  example  to 
prevent  others  connnitting  the  like  crime  which  so  materially  concerns 
all  classes  of  men,  at  the  same  time  having  respect  to  the  imprison- 
ment the  defendant  has  already  suffered,  do  order  and  adjudge  that 
he  pay  to  the  King  a  fine  of  500L,  and  be  further  imprisoned  in  the 
prison  of  this  Court  for  one  month,  and  until  that  fine  be  paid.  .  .  . 

[The  same  d(^f(Mulant  was  tried  two  weeks  later  for  other  similar 
dealings  in  hops.] ' 

(luosE,  J.,  now  passed  sentence  upon  the  defendant;  adverting  to 
what  he  had  before  said  upon  the  first  indictment;  and  that  it  now 
appeared  that  the  defendant  had  carried  on  these  practices  to  a  much 
greater  extent;  and  that  the  particular  offence  of  engrossing,  which 
still  remained  an  offence  at  common  law,  was  calculated  to  create  an 
artificial  scarcity  where  none  exi.sted  in  reality,  and  to  aggravate  that 
calamity  where  it  did  exist.  The  defendant  was  therefore  adjudged  for 
this  offence  to  pay  a  fine  to  tlu>  King  of  500/.  and  to  be  further  im- 
prisoned in  the  prison  of  this  Court  for  three  months,  to  be  computed 
after  the  expiration  of  his  former  imprisonment,  and  further  until  the 
fine  were  paid. 

ARNOT  V.  PITTSTON  AND  ELMIRA  COAL  CO. 
Court  of  Appeals  of  New  York.     1877 

68  .V.  Y.  558 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court 
in  the  third  judicial  di'partment,  affirming  a  judgment  in  favor  of 
plaintiff  entered  upon  the  report  of  tiie  referee.  (Reported  below, 
2  Hun,  591.)  .  .  . 

Rapallo,  J.  This  action  is  l)r()uglit  to  recover  the  price  of  about 
2,700  tons  of  coal,  sokl  and  dellNcred  to  the  defendant  l)y  the  Butler 

1  Rex  V.  \V;uklingt.)ii.  1  Kast.  lf.7. 


74  LEGALITY   OF   COMBINATION  [CHAP.  II 

Colliery  Company  in  the  month  of  August,  1869.  The  plaintiff  claims 
under  an  assignment  from  the  last-named  company. 

The  findings  of  the  referee  establish  that  this  coal  was  delivered 
pursuant  to  a  contract  between  the  two  companies,  dated  August  3, 
1869,  and  the  defence  mainty  rests  upon  the  alleged  illegality  of  that 
contract.  The  referee  has  found  that  the  circiunstances  under  which 
the  contract  was  made  were  as  follows: 

The  Butler  Colliery  Company  was  a  Pennsylvania  corporation,  en- 
gaged in  mining  and  vending  coal,  at  or  near  Pittston,  Pennsjdvania. 
The  defendant  was  also  a  Pennsylvania  corporation,  engaged  in  the 
same  business,  but  in  addition  had  a  coal  depot  at  Elmira,  New  York, 
where  it  was  largely  engaged  in  vending  anthracite  coal,  the  product 
of  the  Pittston  mines,  and  in  distributing  it,  by  canal  and  railway, 
from  Elmira,  to  dealers  and  consumers,  through  a  very  large  extent  of 
country  north  and  west  of  that  point.  Elmira  was  connected  with 
Pittston  by  canal,  and  was  the  chief  market  for  coal  in  western  New 
York,  and  prices  of  coal  were  there  establis^hed  for  the  extensive  dis- 
trict before  mentioned. 

The  purpose  of  the  defendant  in  making  the  contracts  in  question 
was  so  to  control  the  shipment  and  supply  of  coal  for  the  Elmira  mar- 
ket as  to  maintain  an  unnaturally  high  price  of  coal  in  that  market, 
and  to  prevent  competition  in  the  sale  of  coal  therein,  and,  but  for 
that  purpose,  the  defendant  would  not  have  entered  into  the  contract 
in  question  with  the  Butler  Colliery  Company.  Of  all  these  facts  the 
Butler  company  had  notice  at  the  time  of  making  the  agreement. 

As  a  further  means  of  accomplishing  the  same  purpose,  the  defend- 
ant had  made  contracts  adapted  to  promote  it  with  all  the  other  min- 
ing proprietors  at  Pittston.  Of  these  contracts  the  Butler  company 
did  not  have  actual  notice. 

The  agreement  in  question,  entered  into  for  the  purpose  which  has 
been  stated,  was  as  follows :  The  defendant  agreed  that  it  would  take 
all  the  coal  which  the  Butler  company  should  desire  to  send  north  of 
the  State  line,  not  exceeding  2,000  tons  per  month,  at  the  regular 
market-price  established  from  time  to  time  by  the  Wyoming  Coal 
Exchange,  less  fifteen  per  cent  per  ton  commission,  and  that  settle- 
ments should  be  made  on  the  tenth  of  each  month  for  all  the  coal  de- 
livered during  the  preceding  month. 

The  Butler  Colli(;ry  Company  agreed  that  it  would  not  sell  coal  to 
any  party  other  than  the  defendant,  to  come  north  of  the  State  line, 
during  the  continuance  of  the  agreement,  which  was  during  the  season 
of  canal  navigation  for  1869. 

The  other  provisioDS  of  the  agreement  related  to  mere  matters  of 
detail,  not  affecting  the  legal  question  involved. 

It  is  found  as  a  fact  in  the  case,  that  the  product  of  the  Butler  Col- 
liery Company  largely  exceeded  2,000  tons  per  month. 

It  cannot  escape  observation  that  by  this  agreement  the  Butl(M- 
Colliery  Company  did  not  agree  to  sell  or  deliver  to  the  defendant  all 


SECT.  Ill]  RESTRAINT   OF   TRADE  iO 

of  the  product  of  its  luincp,  nor  any  six-cific  quantity  or  proportion 
thereof.  It  was  entin.'ly  optional  witli  it  wliether  or  not  to  deliver  any 
coal  to  the  defendant.  But  the  defendant  did  agree  to  take  all  the 
coal  which  the  Hutler  company  niifiht  desire  to  send  north,  to  the  ex- 
tent of  2,000  tons  per  month.  This  undertakin^i  w<juld  have  been 
utterly  void  for  want  of  mutuality,  had  it  not  been  for  the  aj^rcenient 
of  the  Butler  company  that  it  wcnild  not  sell  coal  to  any  other  party, 
to  come  north  of  the  State  line.  The  only  consideration  for  the  agree- 
ment of  the  defendant  to  take  of  the  i)roduct  of  the  Butler  company 
to  the  extent  of  2, (KM)  tons  jx-r  month,  consisted  in  tiie  stipulation  of 
that  company  not  to  sell  io  any  one  but  the  defendant.  \\  ithout  that 
stipulation,  the  pajDer  called  a  contract  would  have  amounted  to 
nothing.  Neither  party  would  have  been  bound  to  deliver  or  accept 
any  coal.  That  stipulation  was  all  that  {i;ave  vitality  to  the  con- 
tract. 

Bearing  in  mind  the  fact  found,  that  the  product  of  the  Butler 
company's  mines  was  largely  in  excess  of  2,000  tons  \ycr  month,  the 
object  of  the  agreement  is  plain.  The  defendant,  without  binding  it- 
self to  take  tlie  wliole  pnxluct  of  the  mines  of  the  Butler  c(MMpany, 
endeavored  by  this  agreement  to  kcu'p  all  of  the  coal  of  that  company 
out  of  the  market,  except  the  limited  amount  which  it  agreed  to  take, 
and  thus  to  artificially  enhance  the  price  of  that  necessary  commodity. 
This  pvupose  was  the  ba.sis  of  the  whole  agreement,  and,  a,s  is  found  l^y 
the  referee,  was  imderstood  by  both  parties  at  the  time  of  entering 
into  the  contract. 

That  a  combination  to  effect  such  a  purpose  is  inimical  to  the  in- 
terests of  the  public,  and  that  all  contracts  designed  to  effect  such  an 
end  are  contrary  to  puljlic  policy,  and  therefore  illeu;al,  is  too  well 
settled  by  adjudicated  cases  to  be  questioned  at  this  day.  (Morris 
Run  Coal  Co.  i'.  BarcUi}^  Coal  Co.,  68  Pa.  St.  R.  173;  People  v.  Fisher, 
14  Wend.  9;  4  Denio,  352;  5  id.  434;  44  N.  Y.  87,  and  cases 
cited.) 

Every  producer  or  vendor  of  coal  or  other  commodity  has  the  right 
to  use  all  legitimate  efforts  to  obtain  the  best  price  for  the  article  in 
which  he  deals.  But  when  he  endeavors  to  artificially  enhance  prices 
by  suppressing  or  keeping  out  of  market  the  products  of  othei-s.  and  to 
accomj)lish  that  purpose  by  mi^ans  of  contracts  Jjindinti;  tliem  to  with- 
hold their  supply,  such  arrangements  are  even  more  mischievous  than 
combinations  not  to  sell  under  an  agreed  price.  Combinations  of  that 
character  have  been  held  to  be  against  public  {X)licy  and  illegal.  If 
they  should  be  sustained,  the  prices  of  articles  of  pure  necessity,  such 
as  coal,  Hour  and  other  indisjx'nsable  conunodities,  mi^iit  l)e  arti- 
ficially raised  to  a  ruinous  extent  far  exceeding  any  naturally  resulting 
from  the  proportion  between  supply  and  demand.  No  illustration  of 
the  mischief  of  such  contracts  is  jieihaps  moic  apt  than  a  monoix)ly  of 
anthracite  coal,  the  region  of  tlie  production  of  which  is  known  to  l)e 
lunited.    Parties  entering  into  contracts  of  this  description  must  dc- 


76  LEGALITY   OF   COMBINATION  [CHAP.  II 

pend  upon  each  other  for  their  execution,  and  cannot  derive  any 
assistance  from  the  courts.^  .  ,  . 

The  judgment  should  be  reversed  and  a  new  trial  ordered,  with 
costs  to  abide  the  event. 

All  concur;  Miller,  J.,  not  sitting. 

Judgment  reversed. 

MORRIS  RUN  COAL  CO.  v.  BARCLAY  COAL  CO. 
Supreme  Couri  of  Pennsylvania.     1871 

68  Pa.  St.  173 

Agnew,  J.  This  was  an  action  on  a  bill  drawn  upon  one  party  in 
favor  of  another  party  to  a  contract  between  five  coal  companies,  for 
a  sum  found  due  in  the  equalization  of  prices  under  the  contract.  It 
raises  a  question  of  great  importance  to  the  citizens  of  this  state  and 
the  state  of  New  York,  where  the  contract  was  made,  and  was  in  part 
to  be  executed,  to  wit:  whetlieiithejiQntrac.tw^s  illegal  as  being  con- 
trary to  the  statute  of  J<ewJYprk,  or  at  common  law,  or  against  public 
policy.  The  instrument  bears  date  the  15th  day  of  February,  1866. 
The  parties  are  five  coal  companies,  incorporated  under  the  laws  of 
Pennsylvania,  to  wit:  The  Fall  Brook  Coal  Company  and  Morris 
Run  Coal  Company,  of  the  Blossburg  coal  region;  and  the  Barclay 
Coal  Company,  Fall  Creek  Bituminous  Coal  Company,  and  To- 
wanda  Coal  Company,  of  the  Barclay  coal  region.  By  the  agreement 
the  market  for  the  bituminous  coal  from  these  two  regions  is  divided 
among  these  parties  in  certain  proportions.  A  committee  of  three  is 
appointed  to  take  charge  and  control  of  the  business  of  all  these  com- 
panies, to  decide  all  questions  by  a  certain  vote,  and  to  appoint  a 
general  sales  agent  to  be  stationed  at  Watkins,  New  York.  Provision 
is  made  for  the  mining  and  delivery  of  coal,  their  kinds,  and  for  its 
sale  through  the  agent,  subject,  however,  to  this  important  restriction, 
that  each  party  shall,  at  its  own  costs  and  expense,  deliver  its  pro- 
portion of  the  different  kinds  of  coal  in  the  different  markets  at  such 
times  and  to  such  parties  as  the  committee  shall  from  time  to  time  direct. 
The  committee  is  authorized  to  adjust  the  prices  of  coal  in  the  different 
markets  and  the  rates  of  freight,  and  also  to  enter  into  such  an  agree- 
ment with  the  anthracite  coal  companies  as  will  promote  the  interest 
of  these  parties.  Then  comes  an  important  provision  that  the  com- 
panies may  sell  their  coal  themselves,  but  only  to  the  extent  of  their 
proportion,  and  only  at  the  prices  adjusted  by  the  committee.  It  is 
also  provided  that  the  general  sales  agent  shall  direct  a  suspension 
of  shipment  or  deliveries  of  coal  by  any  party  making  sales  or  de- 
liveries beyond  its  proportion,  and  thereupon  such  party  shall  suspend 
shipments  until  the  committee  shall  direct  a  resumption.     Detailed 

•  The  rcmaindcT  of  the  opinion,  holding  that  because  of  the  illegality  of  the 
contract  the  plaintiff  was  not  entitled  to  recover  even  for  coal  actually  delivered 
to  the  defendant,  is  omitted.  —  Ed. 


SECT.  Ill]  RESTRAINT   OF    TRADE  77 

reports  of  tlic  husincss  arc  to  lie  made  l)y  the  companies  to  tlic  frcncral 
sales  a^ent  at  fixed  and  slioit  intervals,  and  settlements  are  to  he  made 
by  the  conmiittee  monthly,  prices  averaK<'d,  and  payments  made  by 
the  companies  in  excess  to  those  in  arrear;  and  finally,  each  party 
binds  itself  nut  to  cause  or  permit  any  coal  to  be  .shipped  or  sold  other- 
wise than  as  the  same  has  been  agreed  upon,  and  th(d  all  rule.s  and 
reynlations  by  the  executive  committee  in  relation  to  the  business  shall 
be  faithfully  carried  out. 

In  regard  to  the  relation  these  companies  hoUl  \o  the  public,  the 
fieUl  of  their  mininii;  operations,  the  markets  they  sui)ply,  the  ext<'nt 
of  their  coal-fields,  and  the  jreneral  sujjply  of  coal,  the  distinjruished 
referee,  Judj^(>  Mlwell,  finds  as  follows:  "The  liarday  and  Bloss- 
burg  coal-mines  are  the  only  coal-mines  furnishing  the  kind  of  coal 
mined  and  shipped  by  these  companies,  except  the  Cumberland  coal, 
which  latter,  in  order  to  reach  the  same  markets,  north,  w(nild  have  to 
be  shipped  l)y  tidewater.  There  was  some  of  the  same  kind  of  coal 
minetl  in  McKean  and  Elk  counties,  in  this  state,  but  in  quantities  so 
small  as  that  it  was  not  considered  by  these  companies  as  coming  into 
competition  with  them.  The  coal  of  the  BUjssburg  and  Barclay 
regions  is  adapted  to  mechanical  purposes  and  for  generating  steam. 
Wherever  sokl  it  comes  into  competition  with  anthracite  coal,  and 
also  with  the  Cumberland  coal  sent  by  tidewater  to  Troy,  New  York, 
to  which  point  both  kinds  of  bituminous  coal  are  shipped." 

During  the  season  of  18GG  these  companies  made  sales  of  coal  at 
Oswego  and  BulTalo  to  parties  who  shipped  to  Chicago,  Milwaukee 
and  other  western  cities.  It  there  came  into  comjjetition  to  some  ex- 
tent with  Pittsburg  coal.  The  latter  is  used  for  making  gas,  but  the 
coal  of  these  companies  cannot  be  used  for  that  purpose. 

The  referee  found  that  the  statute  of  New  York  is,  "if  two  or  more 
persons  shall  conspire,"  first,  "to  connnit  any  offence";  second,  "to 
commit  any  act  injurious  to  the  public  health,  to  public  morals,  or  to 
trade  or  commerce,  they  shall  be  deemed  guilty  of  a  misdemeanor." 

The  referee  found,  as  his  conclusion  upon  the  whole  case,  that  the  \ 
contract  was  void  l)y  the  statute,  and  void  at  conunon  law,  as  against  ) 
public  poUcy.  The  restraint  of  the  contract  upon  trade  and  its  injury 
to  the  public  is  thus  clearly  set  forth  by  the  referee:  "These  corpora- 
tions (he  says)  represented  almost  the  entire  body  of  bituminous  coal 
in  the  northern  part  of  the  state.  By  coml)ination  between  them- 
selves they  had  the  power  to  control  the  entire  market  in  that  district. 
And  they  did  control  it  by  a  contract  not  to  ship  and  sell  coal  other- 
wise than  as  therein  provided.  And  in  order  to  destroy  comjx^tition 
they  provided  for  an  arrangement  with  dealei-s  and  shipiKM-s  of  an- 
thracite coal.  They  were  thereby  prohibitetl  from  selling  under  j^rices 
to  be  fixed  by  a  conunittee  representing  each  company.  And  they 
were  obligeil  to  suspend  shipments  upon  notice  from  an  agent  that 
their  allotted  share  of  the  market  had  Ijeen  forwarded  or  sold.  Instead 
of  regulating  the  business  by  the  natural  laws  of  trade,  to  wit.  those 


78  LEGALITY   OF   COMBINATION  [CHAP.  II 

of  demand  and  supply,  these  companies  entered  into  a  league,  by 
which  they  could  hmii  the  supply  below  the  demand  in  order  to  en- 
hance the  price.  Or  if  the  supply  was  greater  than  the  demand,  they 
could  nevertheless  compel  the  payment  of  the  price  arbitrarily  fixed 
by  the  joint  committee.  The  restraint  on  the  trade  in  bituminous  coal 
was  by  this  contract  as  wide  and  extensive  as  the  market  for  the 
article.  It  already  embraced  the  state  of  New  York,  and  was  intended 
and  no  doubt  did  affect  the  market  in  the  Western  States.  It  is  ex- 
pressly stipulated  that  the  parties  to  this  contract  shall  not  be  con- 
sidered as  partners.  The  agreement  was  not  entered  into  for  the 
purpose  of  aggregating  the  capital  of  the  several  companies,  nor  for 
greater  facilities  for  the  transaction  of  their  business,  nor  for  the  pro- 
tection of  themselves  bj^  a  reasonable  restraint,  as  to  a  limited  time 
and  space,  upon  others  who  might  interfere  with  their  business." 

The  plaintiff  in  error's  reply  to  this  vigorous  statement  of  the  pur- 
pose of  the  contract  and  its  effect  upon  the  public  interest,  alleges 
that  its  true  object  was  to  lessen  expenses,  to  advance  the  quality  of 
the  coal,  and  to  deliver  it  in  the  markets  it  was  to  supply,  in  the  best 
order,  to  the  consumer.  This  is  denied  by  the  defendants ;  but  it  seems 
to  us  it  is  immaterial  whether  these  positions  are  sustained  or  not. 
Admitting  their  correctness,  it  does  not  follow  that  these  advantages 
redeem  the  contract  from  the  obnoxious  effects  so  strikingly  presented 
by  the  referee.  The  important  fact  is  that  these  companies  contr.ol 
this  immense  coal-field ;  that  it  is  the  great  source  of  supply  ofHtu- 
minous  coal  to  the  state  of  New  York  and  large  territories  westward; 
that  by  this  contract  they  control  the  price  of  coal  in  this  extensive 
market,  and  make  it  bring  sums  it  would  not  command  if  left  to  the 
natural  laws  of  trade ;  that  it  concerns  an  article  of  prime  neeessitj^  for 
many  uses;  that  its  operation  is  general  in  this  large  region,  and  affects 
all  who  use  coal  as  a  fuel;  and  this  is  accompUshed  by  a  combination 
of  all  the  companies  engaged  in  this  branch  of  business  in  the  large 
region  where  they  operate.  The  combination  is  wide  in  scope,  general 
in  its  influence,  and  injurious  in  effects.  These  being  its  features,  the 
contract  is  against  public  policy,  illegal,  and  therefore  void.  .  .  . 

The  effects  produced  on  the  public  interests  lead  to  the  considera- 
tion of  another  feature  of  great  weight  in  determining  the  illegality  of 
the  contract,  to  wit:  the  combination  resorted  to  by  these  five  com- 
panies. Singly  each  might  have  suspended  deliveries  and  sales  of 
coal  to  suit  its  own  interests,  and  might  have  raised  the  price,  even 
though  this  might  have  l)een  detrinKMital  to  the  public  interest.  There 
is  a  certain  freedom  which  must  be  allowed  to  every  one  in  the  man- 
agement of  his  own  affairs.  WTien  competition  is  left  free,  individual 
error  or  folly  will  generally  find  a  {H)rre(;tion  in  the  conduct  of  others. 
But  here  is  a  combination  of  all  the  companies  operating  in  the  Bloss- 
l)urg  and  Barclay  mining  regions,  and  controlling  their  entire  produc- 
tions. They  have  combined  together  to  govern  the  supply  and  the 
price  of  coal  in  all  the  markets  from  the  Hudson  to  the  Mississippi 


SECT.  Ill]  RESTRAINT   OF   TRADE  t'J 

r 

rivers,  and  from  Pennsylvania  to  tiie  lakes.    This  combination  has  a        Aaa*4> 

power  in  its  confederated  form  which  no  individual  action  can  confer.  i   (^,^v»a*^ 

The  public  interest  must  succumb  t(j  it,  f(jr  it  ha.s  left  no  comix'tition  l 
free  to  correct  its  baleful  inlhicncc.  \\  hen  the  supply  of  c(nil  is  sus- 
{K'lided,  the  demand  for  it  Ix-comes  importunate,  antl  prices  must  rise. 
Or  if  the  supply  ir,()vs  forward,  the  price  hxed  by  the  confederate^  mast 
accomi)any  it.  The  domestic  hearth,  the  furnaces  of  the  iron  ma.ster, 
and  the  fires  of  the  manufacturer,  all  feel  the  restraint,  while  many 
dependent  hands  are  paralyzed,  and  hungry  mouths  are  stinted.  The 
influence  of  a  lack  of  supply  or  a  rise  in  the  price  of  an  article  of  such 
prime  necessity,  cannot  be  measured.  It  permeates  the  entire  ma&s 
of  conununity,  anrl  leaves  few  of  its  membei-s  untouched  by  its  wither^ 
in^  l)light.  Such  a  combination  is  more  than  a  contract,  it  is  an 
ofTence.  "I  take  it,''  said  ('.il)S()n,  J.,  "a  combination  is  criminal 
whenever  the  act  to  be  done  has  a  necessary  tendency  to  prejudice 
the  public  or  t»o  oppress  individuals,  by  unjustly  subjecting  them  to 
the  power  of  the  confe<lerates,  and  givinp;  effect  to  the  purpose  of  the 
latter,  whether  of  extortion  or  of  mischief.''  Commonwealth  v.  Car- 
hsle,  Brightiy's  Rep.  40.  In  all  such  combinations  where  the  pur- 
pose is  injurious  or  unlawful,  the  gist  of  the  ofTence  is  the  conspiracy. 
Men  can  often  do  by  the  combination  of  many,  what  severally  no 
one  could  accomi)lish,  and  even  what  when  done  by  one  would  be 
innocent.  .  .  . 

Every  "corner,"  in  the  language  of  the  day,  whether  it  ije  to 
affect  the  price  of  articles  of  commerce,  such  as  breadstuffs,  or  the 
price  of  ventlible  stocks,  whiMi  accomplisluvl  by  confederation  to 
raise  or  depress  the  })rice  and  operate  on  the  markets,  is  a  conspir- 
acy. The  ruin  often  spreatl  abroad  by  tliese  heartless  conspiracies 
is  indescribable,  frequently  filling  the  Innd  with  starvation,  poverty, 
and  woe.  Every  as.sociation  is  criminal  whose  object  is  to  raise  or  de- 
press the  price  of  labor  Ixn'ond  what  it  would  l)ring  if  it  were  left 
without  artificial  aid  or  stimulus:  Rex  v.  Byerdike,  1  M.  «fc  S.  179.  In 
the  case  of  such  associations  the  illegality  consists  most  frequently  in 
the  means  employed  to  carry  out  the  object.  To  fix  a  standard  of 
prices  among  men  in  the  same  employment,  as  a  fee  bill,  is  not  in  itself 
criminal,  but  may  become  so  when  th(^  parties  resort  to  coercion, 
restraint  or  penalties  upon  the  employed  or  employers,  or  what  is 
worse,  to  force  of  arms.  If  the  means  be  unlawful  the  combination  is 
indictable:  Commonwealth  v.  Hunt,  4  ]\Ietc.  111.  A  conspiracy  of 
journeymen  of  any  traile  or  hantlicraft  to  raise  the  wages  by  entering 
into  combination  to  coerce  journeymen  and  master  workmen  em- 
ployed in  the  same  branch  of  industry  to  conform  to  rules  adopted  by 
such  combination  for  the  purpose  of  regulating  the  price  of  labor,  and 
carrying  such  rules  into  effect  by  overt  acts,  is  indictable  as  a  mis- 
demeanor: 8  Whart.  C.  L.,  citing  Tlie  People  r.  Fislil>ee.  14  Wend.  0. 
Without  multiplying  examples,  th(>se  are  sufficient  to  illustrate  the 
true  aspect  of  the  case  before  us,  and  to  show  that  a  combination  such 


80  LEGALITY    OF    COMBINATION  [CHAP.  II 

as  these  companies  entered  into  to  control  the  supply  and  price  of  the 
Blossburg  and  Barclay  regions  is  illegal,  and  the  contract  therefore 
void.^  .  .  . 

HORNBY  V.  CLOSE 
/V^'  Queen's  Bench.     1867 

^  '^V  L.  R.  2Q.  B.  153 

Case  stated  by  justices  of  the  west  riding  of  Yorkshire  under  20  & 
21  Vict.  c.  43. 

An  information  was  laid  on  the  12th  of  January,  1836,  at  Bradford, 
in  the  said  riding,  by  John  Hornby  (the  appellant),  boilermaker,  the 
president  of  the  Bradford  Branch  Society  of  the  United  Order  of 
Boilermakers  and  Iron  Shipbuilders,  on  behalf  of  the  said  society,  a 
copy  of  the  rules  of  which  society  have  been  duly  deposited  with  the 
registrar  of  fricndl}-  societies  in  England,  pursuant  to  the  statute, 
charging  that  Charles  Close  (the  respondent),  boilermaker,  on  the  16th 
of  December,  1865,  at  Bradford  aforesaid,  being  then  and  there  a 
member  of  the  said  society,  and  having  in  his  possession  certain 
moneys  of  the  said  society,  amounting  to  24/.  18s.  5|f/.,  did  then  and 
there  unlawfully  withhold  the  same  from  the  said  society,  contrary  to 
the  form  of  the^  statute  (18  &  19  Vict.  c.  63,  s.  24). 

A  summons  upon  the  above  information  was  issued,  and  on  the 
hearing  the  charge  against  the  respondent,  as  laid  in  the  information, 
was  fully  proved. 

A  copy  of  the  "Rules  and  Regulations  of  the  United  Society  of 
Boilermakers  and  Iron  Shipbuilders  of  Great  Britain  and  Ireland" 
was  put  in,  and  admitted  to  be  correct.  A  copy  of  such  rules  was 
transmitted  with  the  case. 

The  following  was  the  title-page  of  the  rules:  "Rules  and  Regula- 
tions to  be  observed  and  strictly  enforced  by  the  United  Society  of 
Boilermakers  and  Iron  Shipl)uilders  of  Great  Britain  and  Ireland. 
Instituted  for  the  purpose  of  mutual  relief  of  its  members  when  out 
of  employment,  the  relief  of  their  sick,  and  burial  of  their  dead,  and 
other  benevolent  purposes,  as  inserted  in  their  rules."  .  .'  . 

It  was  contended  for  the  respondent,  that  the  society  was  not  a 
society  within  sec.  44  of  the  18  &  19  Vict.  c.  63;  and  further,  that  it  was 
a  society  established  for  pm-poscs  which  are  illegal,  being  against 
public  policy,  in  restraint  of  trade,  and  depriving  the  workman  of  the 
free  exercise  of  his  own  will  in  the  employment  of  his  labour,  and  also 
in  restraining  him  from  getting  employment  or  continuing  in  employ- 
ment, or  obtaining  employment  for  a  non-member  of  the  society;  and 
lastly,  that  the  societj^  was  an  organization  for,  or  tending  to,  the  en- 
couraging and  maintaining  of  strikes. 

In  support  of  these  objections,  the  following  passages  in  the  rules 
and  regulations  of  the  soci(^ty  w(>re  relied  on : 

1  Accord:  Hunt  v.  Riverside  Co-operative  Club,  140  Mich.  538. 


SECT.  Ill]  RESTRAINT   OF   TRADE  81 

Rule  28.  Pioco-work.  —  Piccf-work  disputes  and  l)enefits  from 
contingent  fund.  Sec.  1.  Tluit  in  districts  wliere  nienibers  arc  com- 
pelled to  work  piece-work,  and  it  be  proved  to  the  satisfaction  of  the; 
executive  council  that  the  firm  is  reducing  the  prices  l)elow  the  usual 
and  reasonal)lc  prices,  they  shall  allow  the  men  resisting  the  reduc- 
tion 7.S.  per  week  for  two  weeks,  after  Iwing  out  six  days;  after  which 
they  shall  receive  their  travelling  cards,  according  to  rule  20. 

Sec.  2.  That  any  member  or  meml)ei-s  in  a  shop,  either  on  piece- 
work or  day-work,  where  a  dispute  arises  coimected  with  our  trade 
or  society,  no  member  or  members  shall  Ik-  allowed  to  call  at  such 
shop  or  shops  after  being  made  acfiuainted  with  such  dispute,  or  for 
doing  so  to  be  fined  the  sum  of  lO.s.  And  that  any  member  of  this 
society,  either-  angle-iron  smith,  plater,  rivetter,  or  holder-up,  en- 
couraging any  holder-up  or  labourer  to  violate  this  rule,  by  allowing 
him  to  practise  with  his  tools,  or  otherwise  instructing  him  in  other 
brandies  of  the  trade,  contrary  to  these  rules,  shall,  on  proof  thereof, 
be  fined  for  the  first  offence  o.s.,  for  the  second  10.s.,  and  for  the  third 
to  be  expelled  the  society. 

Rule  29.  Disputes  on  day-work  and  benefits.  Sec.  1.  Should  a 
dispute  aris(»  in  any  shop,  the  memi)ers  of  that  shop  shall  make  it 
known  to  their  l)ranch,  which,  if  it  only  alTects  the  interest  of  two  or 
three  members,  such  branch  to  have  power  to  settle  it,  and  grant  to 
members  wishing  to  travel  12s.  cards,  or  12s.  per  week  donation.  But 
should  a  gen(M'al  dispute  arise  in  any  shop,  which  cannot  be  amicably 
settled  1)V  the  branch,  it  shall  be  referred  to  the  executive  council,  who 
shall  give  them  instructions  on  the  sul)ject.  All  members  losing  their 
employment  through  such  disputes,  after  being  sanctioned  by  the 
executive,  shall  receive  the  sum  of  12s.  per  week,  so  long  as  they  re- 
main out  of  employment.  This  rule  to  be  apphed  to  all  disputes  ex- 
cepting the  settlement  of  piece-work  prices. 

Rule  42,  sec.  1  (part  of).  Any  meml)er  using  his  influence  to  obtain 
cmi)loyment  for  a  non-member,  shall  be  fined  for  such  offence  10s. 

Rule  20,  sec.  4.  Any  member  leaving  his  employment  on  his  own 
responsibility,  to  se(>k  for  other  employment,  shall  not  be  entitled  to 
travelling  relief  until  he  has  again  been  in  employment  one  month. 

The  justices  were  of  opinion  that  the  objections  urged  on  behalf  of 
the  respondent  were  valid;  that  the  society  in  question  was  not  within 
the  44th  section  of  the  18  &  19  Vict.  c.  G3;  and  that  the  rules  of  the 
society  in  question  shewed  or  set  forth  an  illegal  purjwse;  and  con- 
sequently they  dismissed  the  complaint. 

The  question  was,  whether  the  determination  upon  the  facts  ami 
grounds  previously  statetl  is  or  is  not  erroneous  in  point  of  law.  .  .  . 

CocKRiUN,  ('.  J.  We  ought  not  to  hesitate  a  moment  in  saying 
that  we  think  the  magistrates  were  perfei-tly  right  in  holding  that 
this  society  did  not  come  within  the  operation  of  the  I'riendly  Socii*- 
ties  Act,  so  as  to  give  the  magistrates  jurisdiction.  I  (juite  agree  with 
Mr.  M(^llish  that,  supposing  the  main  purpose  of  the  societj'  were 


82  LEGALITY   OF   COMBINATION  [CHAP.  II 

within  the  9th  section,  as  being  benevolent,  it  would  not,  by  reason 
of  one  or  two  of  the  rules  being  beyond  that  purpose,  cease  to  be  a 
society  within  the  act.  It  isjhcrefore,  in  each  case,  material  to  inquire 
what  the  purposes  of  the  society  were.  Here  we  find  the  very  pur- 
poses  of  the  existence  of  jthe  society  not  merely  those  ofa  friendly 
society,  but  to  carry  out  the  objects  ot  a  trades'  union.  Under  that 
ferm  may  be  included  every  combination  by  wliich  men  l)ind  them- 
selves not  to  work  except  under  certain  conditions,  and  to  support  one 
another,  in  the  event  of  being  thrown  out  of  emplojanent,  in  carrj'ing 
out  the_views  of^the  majority.  I  am  very  far  from  saying  that  the 
members  of  a  trades'  union  constituted  for  such  purposes  would  bring 
themselves  within  the  criminal  law;  but  the  rules  of  such  a  society 
would  certainly  operate  in  restraint  of  trade,  and  would  therefore,  in 
that  sense,  be  unlawful;  and  on  the  principle  on  which  the  Court  of 
Error,  in  Hilton  v.  Eckersley,^  affirming  the  decision  of  this  Court 
held  that  a  bond,  given  by  masters  to  observe  rules  in  their  business 
which  were  in  restraint  of  trade,  was  so  far  illegal  that  it  could  not 
be  enforced  in  a  court  of  law,  we  hold  that  these  rules  of  a  society  of 
workmen  being  in  restraint  of  trade  are  also  so  far  illegal;  that  is  to 
say,  when  we  find  one  of  the  main  objects  of  a  society  is  that  of  a 
trades'  union,  many  of  its  rules  being  in  restraint  of  trade,  so  that  if  an 
action  were  brought  to  enforce  a  civil  right  in  respect  of  any  of  them 
they  would  be  held  not  enforceable  at  law,  in  the  same  sense  we  hold 
the  society  is  not  "for  a  purpose  which  is  not  illegal,"  and  so  not 
within  the  act.  Therefore,  for  these  two  reasons  we  hold  the  present 
society  not  within  sec.  41;  first,  because  it  is  for  a  purpose  not  anal- 
ogous to  that  of  a  benevolent  or  friendly  societ}^  such  as  is  mentioned 
in  sec.  9;  and  secondly,  because  those  rules,  although  they  may  not 
be  illegal  in  the  sense  of  bringing  the  parties  to  them  within  the 
criminal  law,  are  in  restraint  of  trade,  and  so  far  illegal. 

Blackburn,  J.  I  am  of  the  same  opinion.  ...  I  do  not  say  the 
objects  of  this  society  are  criminal.  I  do  not  say  they  are  not.  But  I 
am  clearly  of  opinion  that  the  rules  referred  to  are  illegal,  in  the  sense 
that  they  cannot  be  enforced;  and  on  this  ground,  also,  I  think  the 
societ}^  not  within  sec.  44,  as  not  l)eing  "for  a  purpose  not  illegal." 
Whatever  the  inclination  of  my  opinion,  it  is  unnecessar}'  to  decide 
whether  the  illegality  of  any  of  the  rules  would  taint  the  whole,  be- 
cause here  the  illegal  objects  formed  not  a  small  part,  but  a  principal, 
if  not  the  whole,  object  of  the  society. 

Melloh,  J.  I  am  also  of  the  same  opinion.  desire  to  express  no 
opinion  as  to  whether  the  rules  referred  to  are  illegal  in  the  sense  of 
b(;ing  criminal.  Some  of  the  substantial  obj(^cts  of  the  society  are 
those  of  a  trades'  union,  and  for  the  maintenance  of  its  members 
when  on  strike,  and  these  ol^jects  cannot  l)e  separated  from  the  other 
objects,  if  any,  of  the  society.  Nor  can  I  doubt  tliat  many  members 
joined  the  society  on  the  very  footing  ll.nt  tiieie  were  such  rules  and 

'  (3  E.  &  B.  OG;  2.";  L.  .1.  ((^  H.)  190. 


1 


SECT.  Ill]  RESTRAINT   OF   TRADE  83 

for  the  very  sake  of  the  illogal  objects.  .\s  my  Lord  and  my  Brothf-r 
Bhirklmrn  havf  said,  aUhoiiM;h  scjinc  of  the  objects  of  the  .society 
may  be  those  of  a  friendly  s(Kiety,  y<'t  tliese  olher  and  substantial 
objects  of  a  trades'  union  are  not  analogous  to  tli(jse  of  a  friendly 
society,  not  bein^  benevolent ;  and  the  rules  not  bein^  le^al  in  the  sen.'^e 
of  enforceable  at  law,  on  the  principle  of  the  decision  in  Hilton  r. 
I'lckersley,'  the  society  was  not  within  the  act,  and  the  magistrates 
had  no  jurisdiction  ov»'r  the  case. 

Lush   J.    I  am  entirely  of  the  .-^anie  opinion.    <  )ne  main  purjMJse  of 

the  society,  if  not  the  main  i)urpose,  was  to  form  a  tra<les'  union. 

That  beinp;  so,  the  purpose  of  the  society  was  not  analogous  to  that 

of  a  friendly  .society;  and  fuither,  this  purpose  was  illegal,  in  the  sen.'^e 

it  was  a  purpose  which  could  not  i)e  enforced  in  a  court  of  law. 

Judgment  for  the  respondent.^ 


RIGBY  V.  CONNOL 

Chancery  Divisidn.     1880 

L.  R.  14  Ch.  Div.  4S2 

This  was  an  action  by  the  plaintiff,  who  iuid  i)een  expelled  from  a 
trades  union  of  which  he  was  a  member,  against  the  committee  and 
trustees  of  the  union,  claiming  to  l^e  entitled  to  share  in  the  benefits  of 
the  union,  and  that  the  defendants  might  be  restrained  from  exclud- 
ing him  therefrom. 

The  statement  of  claim  alleged  that  the  "Journeymen  Hatters' 
Fair  Trade  Union  of  Great  Britain  and  Ireland"  was  a  trade  union  of 
journeymen  hatters  duly  registered  under  the  Trades  I'nion  Act, 
1871  (34  &  35  Vict.  c.  31),  and  that  the  defendants  were  the  trustees 
and  connnittee  of  the  union;  that  the  said  "Fair  Trade  Union"  held 
its  meetings  at  Denton,  near  Manchester,  and  was  governed  by  rules; 
and  that  rule  73  was  as  follows: 

"Any  journeyman  binding  his  son  in  a  foul  shop  shall  be  fined  £5, 
and  not  be  entitled  to  any  benefit  until  he  has  paid  his  fine  and  con- 
tributed twenty-six  weeks  according  to  rule." 

A  "foul  shop"  wa^,  as  was  stated,  a  shop  in  which  non-unionists 
were  employed. 

'  6  E.  &  B.  47,  66;  24  L.  J.  (Q.  B.)  3.5.3;  2.5  L.  J.  (Q.  B.)  199.  ^ 
*  Frederic  Harrison,  a  member  of  the  Royal  Cornini.-vsion  of  l,Sr>7,  siioakiiip  of 
the  decision  of  Horntiy  v.  Close,  wrote  in  The  Beehive  of  Jan.  2G,  1S()7  a.s  follows: 
"The  judgment  lays  down  not  merely  that  certain  societies  have  failed  to  bring 
themselves  within  the  letter  of  a  certain  Act  but  that  Trade  Unions,  of  whatever 
sort,  are  in  their  nature  contrary  to  public  policy,  and  that  their  object  in  it.self 
will  vitiate  everj'  a.ssociation  and  every  transduction  into  which  it  enters.  ...  In 
H  word.  Unionism  becomes  (if  not  according  to  the  suggestion  of  the  learned  judge 
—  criminal)  at  any  rate  .something  like  l)cttingand  gaml)Ung.  put)lic  nui.sjmces  and 
immoral  considerations  —  things  condemned  and  su|)pre.sscd  by  the  law."  (Quoted 
in  Webb,  HLstory  of  Trade  Unionism  (1920  ed.).  p.  2»»2.) 


84  LEGALITY   OF   COMBINATION  [CHAP.  II 

The  statement  of  claim  further  alleged  as  follows : 

That  a  son  of  the  plaintiff  had  been  apprenticed  by  him  to  IMessrs. 
Mason,  of  Denton,  whose  work  was  done  by  members  of  a  trade  union 
called  "The  Hatters'  Mutual  Association'";  but  that,  on  the  failure  of 
this  firm,  the  indentures  were  cancelled,  and  he  shortly  aiterwards 
obtained  employment  with  Messrs.  Turner  &  Co.,  whose  work  was 
also  done  by  members  of  the  said  "Hatters'  Mutual  Association": 

That  on  the  3d  of  jMay,  1878,  the  secretary  of  the  "Journej-men 
Hatters'  Fair  Trade  Union"  wrote  to  the  plaintiff  that  if  he  did  not 
remove  his  son  from  Messrs.  Turner  &  Co.'s,  further  proceedings 
would  be  taken  against  him  by  the  committee  at  once;  that  the 
plaintiff  declined  to  remove  his  son,  whereupon  the  committee  fined 
the  plaintiff  £5  under  rule  73;  that  such  fine  was  impropcrl}^  unposed, 
as  Messrs.  Turner  ^  Co.'s  was  not  a  "foul  shop"  within  the  meaning 
of  rule  73,  and  that  the  plaintiff's  son  was  not  bound  or  apprenticed 
there : 

That  the  plaintiff  having  refused  either  to  pay  the  fine  or  to  remove 
his  son  the  defendants  had  purported  to  expel  the  plaintiff  from  the 
union,  and  sent  a  note  to  his  employers  stating  that  the  members  of 
the  union  would  refuse  to  work  any  longer  with  the  plaintiff,  where- 
upon the  plaintiff  was  discharged  by  his  employers  and  had  been 
unable  to  obtain  employment  elsewhere.  .  .  . 

The  plaintiff  claimed  a  declaration  that  as  long  as  he  should  con- 
form to  the  rules  of  the  said  "Fair  Trade  Union,"  which  he  thereby 
offered  to  do,  he  was  entitled  to  participate  in  the  enjoyment  of  the 
property  and  effects  of  the  trade  union,  and  in  its  rights,  privileges, 
and  benefits,  and  that  the  pretended  expulsion  of  the  plaintiff  from 
the  said  trade  union  was  invalid,  and  that  the  defendants  might  be 
restrained  by  injunction  from  excluding  the  plaintiff  from  such  partici- 
pation. There  was  also  a  claim  for  damages  by  reason  of  the  plaintiff's 
alleged  improper  expulsion.  The  statement  of  claim  did  not  allege 
that  the  said  "Fair  Trade  Union"  possessed  any  property.  .  .  . 

The  rules  which  governed  the  "Fair  Trade  Union"  were  not,  except 
as  before  stated,  set  out  in  the  statement  of  claim.  These  rules  pro- 
vided that  all  the  members  should  pay  certain  subscriptions,  and 
should  also  be  liable  to  certain  fines,  and  that  the  moneys  so  raised 
should  be  applied  for  the  purposes  mentioned  in  the  rules,  and  for  no 
other  purpose.  These  purposes  were  partly  for  the  benefit  of  the  mem- 
bers of  the  union,  including  provision  in  case  of  sickness  and  of  want 
of  employment,  payments  to  members  on  strike,  payments  in  aid  of 
the  emigration  of  members,  and  in  the  event  of  death,  payments  in  aid 
of  the  funeral  expenses,  and  provisions  for  the  widows  and  children  of 
d(iceased  members.  The  rules  provided  that  any  member  admitted 
under  a  fine  should  not  be  adniitted  to  any  benefit  unt  il  he  should  have 
paid  the  whole  fine  and  twenty-six  weeks'  contributions.^  .  .  . 

'  Part  of  the  statement  of  facta  is  omitted.  —  Ed. 


SECT.   Ill]  RESTUAIN'T   OF    TRADE  85 

Jessel,  M.  R.'  .  .  .  That  bciuK  tho  position  of  the  phiintiff,  we  mast 
consider  what  the  Traiii's  Union  Act,  1S71,  provides.  That  Act,  no 
d  )ul)t,  was  pa.ssed  primarily  with  a  view  to  preventinj^  the  treasurers 
and  scerftarics  and  oflicers  <jf  these  .societies  from  rohhinj?  them;  tliat 
was  the  clii<'f  ol)ject.  It  was  thscovered  that  .s(jme  of  these  men,  al)U.'-- 
ing  the  confidence  reposed  in  them,  took  advantage  of  the  law  which 
made  these  societies  illegal,  by  approjjriating  their  funds  and  property 
to  their  own  use.  That,  no  tlouht,  was  one  of  the  principal  objects, 
and  therefore  the  Act  was  passed  to  get  at  these  men.  Another  ol)j<'ct 
was  this:  there  was  a  great  dilUculty  in  suing  and  getting  their  prop- 
erty from  tliiid  persons,  and  one  object  of  the  Act  was  to  enable  these 
societies  to  sue  in  respect  of  their  property,  and  also  to  enaljle  them  to 
hold  property,  such  as  a  house  or  olhce,  but  it  was  not  intended  that 
the  contracts  entered  into  by  the  members  of  the  .society  should  l)e 
made  legal  contracts  inter  sc,  so  that  Courts  of  Jastice  should  inter- 
fere to  enforce  them.  If  that  had  been  intended  the  result  would  have 
been  this,  that  an  agreement  between  a  numlu'r  of  workmen  once 
entered  into,  compelling  them  to  work  in  a  i)articular  manner,  or  to 
abstain  from  working  in  a  particular  manner,  would  have  been  en- 
forceable according  to  law,  and  to  a  certain  extent  would  have  re- 
duced some  portion  of  the  workmen  to  a  condition  of  something  like 
serfdom  and  slavery.  Of  course  the  Legislature,  by  interfering,  had 
no  idea  of  d(Mng  anything  of  that  sort.  Again,  the  Act  recognises  the 
principle  that  men  may  enter  into  any  contract  they  think  fit:  there 
is  an  exception  in  the  case  of  a  contract  for  borrowing  in  this  country, 
antl  I  hope  that  exception  will  always  remain  in  whatever  form  that 
contract  may  be  expressed. 

Then  the  Act  goes  on  to  provide,  in  sec.  2,  that  the  purposes  of  a 
trades  union  shall  not,  by  reason  that  they  are  in  restraint  of  trade, 
be  deemed  to  be  unlawful  so  as  to  render  the  members  criminally 
liable;  and  then,  by  .sec.  3,  for  the  same  reason,  that  the  purposes 
shall  not  be  unlawful  so  as  to  render  void  or  voidable  any  agn^'uient 
or  trust.  That  applies  to  the  rules  of  this  union,  and  does  not  render 
them  unlawful  for  being  in  restraint  of  tratle,  and  then  there  comes 
this  provision  in  sec.  4:  "Nothing  in  this  Act  shall  enal)le  th(^  Court 
to  entertain  an\'  legal  procetnlings  instituted  with  the  object  of  directly 
enforcing  or  recovering  damages  for  the  breach  of  any  of  the  following 
agreements."  Then  it  specifies  what  they  are,  and  one  of  them  is, 
"any  agreement  for  the  application  of  the  funds  of  a  trades  union  to 
provide  l)enefits  for  members."' 

I  am  satisfied  that  the  agreement  contained  in  the  rules  is  an  agree- 
ment to  provide  benefits  for  members,  and  that,  if  I  decide  in  favour 
of  the  plaintiff,  I  directly  enforce  that  agrecMuent,  because  I  declare 
him  entitled  to  participate  in  the  projuM-ty  of  th(>  union,  anil  the  only 
property  they  have  is  their  subscriptions  and  tines,  and  I  restrain  the 

*  That  part  of  the  opinion  dealing  witli  the  jurisdiction  of  a  i-ourt  of  equity  to 
enjoin  the  plaintiff's  expulsion  is  omitted.  —  Ed. 


86  LEGALITY   OF   COMBINATION  [CHAP.  II 

society  from  preventing  that  participation.  It  seems  to  me  that  is 
directlj'  enforcing  that  agreement,  in  fact,  it  is  in  substance  directing 
and  enforcing  the  specific  performance  of  it,  nothing  more  or  less. 

The  only  question  remaining,  therefore,  is  whether  the  negative 
words  in  this  Act,  "nothing  in  this  Act  shall  enable,"  really  prevent 
me  giving  him  any  relief  whatever,  because  those  words  do  not  say 
that  the  Court  may  not  otherwise  enforce;  all  the  section  says  is, 
"Nothing  in  this  Act  shall  enable." 

The  question,  therefore,  which  I  have  to  consitler  is,  what  would 
have  happened  without  the  Act?  And  it  appears  to  me  that  without 
the  Act  it  is  clearly  an  unlawful  association;  it  is  an  association  by 
which  men  are  not  onh'  restrained  in  trade,  but  they  are  bound  to  do 
certain  acts  under  a  penalty.  Take  the  very  act  for  which  this  man 
was  expelled.  He  was  expelled  because  he  bound  his  son  apprentice 
in  a  shop  where  the  workmen  did  not  belong  to  this  union  but  to 
another  union.  That  is  the  allegation.  And  the  rule  is  that  any  man 
binding  his  son  in  a  "foul  shop,"  which,  as  it  has  been  explained  to  me, 
includes  a  shop  of  this  description,  where  the  members  employed 
belong  to  another  union  and  not  to  this  union,  shall  be  fined  £5,  and 
so  on  according  to  the  rules.  I  see  a  great  number  of  other  stipulations 
of  a  character  which  are  not  only  a  restraint  in  trade,  but  so  much  in 
restraint  of  trade,  limiting  the  subject  of  it,  that  I  have  no  doubt  that 
before  this  Act  was  passed  these  rules  would  have  been  altogether 
illegal;  and  if  nothing  in  the  Act,  therefore,  will  assist  the  plaintitf,  he 
must  still  be  in  the  position  of  a  member  of  an  illegal  association  com- 
ing to  a  Court  of  Justice  to  assist  him  to  enforce  his  rights  under  that 
illegal  association. 

If  that  is  so,  it  is  impossible  for  me,  and  I  do  not  think  it  ever  was 
intended  by  the  Legislature,  looking  to  the  terms  of  the  Act  of  Parlia- 
ment, to  enable  the  Courts  to  interfere  on  behalf  of  the  members  of 
these  societies  for  the  purpose  of  getting  relief  inter  se  with  respect  to 
rights  and  liabilities  contrarj^  to  the  Act;  and  in  construing  the  Act  as 
I  do,  I  believe  I  am  not  only  fairly  construing  it,  as  is  my  habit,  accord- 
ing to  the  literal  meaning  itself,  but  according  to  the  manifest  inten- 
tion of  the  Legislature.  The  action  will  therefore  be  dismissed  with 
costs.  ^ 

SNOW  V.  WHEELER 
.    Supreme  Judicial  Court  of  Massachusetts.     1873 

/  113  Mass.  179 

Bill  in  Equity  brought  by  William  A.  Snow  and  five  others,  on  be- 
half of  themselv(>s  and  other  members  of  the  North  Brookfield  Lodge, 
No.  28,  of  the  order  of  the  Knights  of  St.  Crispin,  against  Daniel  W. 
^         Wheeler,  Cornelius  Dnggan,  and  llie  People's  Savings  Bank  of  Wor- 

»  See  Russell  v.  Ainalniuiiated  Society  of  C^jirpcnters,  [1912]  A.  C.  42L 


SECT.  Ill]  RESTRAINT   OK   TRADE  87 

cestor,  to  coinpcl  tlic  dcfciK hints  \\'l»('('l('r  iind  DuKKJi'i  to  draw  an 
order  upon  the  del'eiidant  Icink  to  enable  tlic  plaintiffs  to  withdraw 
from  th(!  hank  a  deposit  made  hy  Wheeler  and  Du^fian,  in  their  names 
as  trustees,  hut  acting  as  a  committee  (jf  the  lod^e.  .   .  . 

The  ejise  was  referred  to  a  master,  a  part  of  wliosc  report  wiis  a.s 
follows: 

"The  North  lirookfield  Lodge,  No.  28,  of  the  order  of  the  KniKhts 
of  St.  (■rispin,  is  an  unincorporated  and  voluntary  as.sociation  in  the 
town  of  North  Jirookfieid,  in  the  county  (jf  Worcester,  eonjposcd  of 
persons  employed  as  workmen  in  the  manufacture  of  hoots  and 
shoes,  but  not  including  proprietors  of  boot  anil  shoe  manufacturing 
establishments  who  employ  workmen,  or  their  foremen.  Each  mem- 
l^er  upf)n  l)eing  admitted  to  the  a.ssociation,  subscribes  his  name  to  the 
constitution  and  by-laws,  and  also  signs  the  following  ol)ligation: 
'  I  will  not  ti'ach  or  cause  to  be  taught  any  new  hand,  any  part  or 
parts  of  the  boot  or  shoe  trade  without  the  permission  of  the  lodge  of 
which  I  am  a  member.'    .   .   ."' 

Colt,  J.-  This  l)ill  is  bnnight  on  behalf  of  a  voluntary  association, 
the  individual  members  of  which  are  too  numerous  to  be  joined  as 
plaintiffs,  and  it  is  therefore  brought  in  the  name  of  a  few,  for  them- 
selves and  all  the  other  meml^ers.  Birmingham  i\  (lallagh(>r,  112 
Ma.ss.  190.    It  is  heard  upon  the  pleadings  and  master's  report. 

The  individuals  named  as  d(>fendants  wiM'c  meml)ers  of  the  associa- 
tion, and  r<>ceived  its  funds  fn^u  the  treasurer  as  a  committee  chosen 
to  deposit  the  same  for  safe  keeping  in  the  bank,  which  is  named  as  a 
co-defendant  in  the  l)ill.  The  money  was  deposited  in  their  names,  as 
trustees,  and  they  now  refuse  to  restore  it  to  the  control  of  the  associa- 
tion —  the  def(Midant  l)ank  refusing  to  pay  without  an  order  signed  by 
the  trustees,  but  submitting  itself  to  the  decree  of  the  court. 

The  only  question  before  us  is,  whether  upon  the  facts  stated  in  the 
master's  report,  and  contained  in  the  documents  referred  to,  the  trust 
set  forth  must  have  been  assumed  by  the  tlefendants  for  an  illegal 
purpose.  The  plaintiffs  iwv  clearly  entitled  to  recover  their  own  money 
thus  detained  by  parties  wlio  received  it  in  a  fiiluciary  capacity,  unless 
it  appears  that  the  money  was  delivered  to  them,  or  must  be  held 
when  recovered  by  the  plaintiffs,  for  a  purpose  immoral,  illegal  or  con- 
trary to  pul)lic  policy. 

The  object  and  purposes  of  the  association  which  the  plaintiffs  rep- 
resent are  shown  by  the  constitution  antl  l)y-laws  of  the  lodge,  which 
are  made  part  of  the  case;  these  are  subscrilMnl  to  !)y  each  member  at 
the  time  of  his  admission,  with  an  additional  agreement  "not  to 
teach  or  cau.se  to  be  taught  any  new  hand  any  part  or  parts  of  the  boot 
or  shoe  trade  without  the  ix'rmi.ssion  of  the  lodge  of  which  I  am  a 
member."   Its  members  are  wholly  c(Mnposed  of  individuals  employed 

'  Part  of  the  .statement  of  facts  ami  of  tin-  iiiasti-r's  ri'iK)rt  is  imiittfil.  —  Ed. 
-  This  case  was  argued  in  writing,  and  considered  by  all  the  judges. 


88  LEGALITY   OF    COMBINATION  [CHAP.  II 

as  workmen  in  the  manufacture  of  boots  and  shoes,  but  it  does  not 
include  proprietors  or  their  foremen. 

It  is  insisted  that  the  agreements  thus  estabhshed  between  the 
members  of  the  order  are  in  unlawful  restraint  of  trade,  and  therefore 
illegal,  as  being  against  public  polic3^  But  in  the  opinion  of  the  court 
the  point  is  not  well  taken.  In  the  relations  existing,  between  labor 
and  capital,  the  attempt  by  cooperation  on  the  one  side  to  increase 
wages  by  diminishing  competition,  or  on  the  other  to  increase  the 
profits  due  to  capital,  is  within  certain  Hmits  lawful  and  proper.  It 
ceases  to  be  so  when  unlawful  coercion  is  employed  to  control  the 
freedom  of  the  individual  in  disposing  of  his  labor  or  capital.  It  is  not 
easy  to  give  a  definition  which  shall  include  every  form  of  such 
coercion;  it  is  enough  that  in  the  compact  before  us  there  is  no  evi- 
dence of  any  purpose  to  use  such  unlawful  means  in  any  form.  .  .  . 

In  Carew  v.  Rutherford,  106  Mass.  1,  14,  it  is  said,  "Every  man  has 
a  right  to  determine  what  branch  of  business  he  will  pursue,  and  to 
make  his  own  contracts  with  whom  he  pleases  and  on  the  best  terms 
he  can."  "He  may  refuse  to  deal  with  any  man  or  class  of  men.  And 
it  is  no  crime  for  any  number  of  persons,  without  an -unlawful  object  in 
view,  to  associate  themselves  together  and  agree  that  they  will  not 
work  for  or  deal  with  certain  men  or  classes  of  men,  or  work  under  a 
certain  price,  or  without  certain  conditions."  And  in  Commonwealth 
V.  Hunt,  4  Met.  Ill,  134,  Shaw,  C.  J.,  declares  that  the  legality  of 
such  association  will  depend  upon  the  means  to  be  used  for  the  ac- 
complishment of  its  objects  and  whether  they  be  innocent  or  other- 
wise. 

In  the  case  at  bar  there  is  no  evidence  afforded  by  the  documents 
submitted  to  us  that  the  purposes  of  this  association  are  unlawful  by 
the  rule  stated.  Unlawful  coercion  certainly  does  not  appear  to  be 
intended.  And  the  right  of  the  members  to  instruct  whom  they  choose 
in  the  mysteries  of  their  trade  cannot  be  denied.  The  case  presented  is 
not  one  where  there  is  evidence  to  justify  us  in  finding  that  the  objects 
and  purposes  of  the  association  are  fraudulently  and  colorably  declared 
as  a  cover  for  a  secret  unlawful  agreement  of  its  members.  It  will  be 
time  enough  to  deal  with  such  a  case  when  it  arises. 

In  this  view,  it  is  not  necessary  critically  to  examine  the  instances  of 
alleged  illegal  conduct  which  it  is  said  arc  found  upon  the  records  of 
the  association,  or  to  inquire  whether  they  amount  to  illegal  restraint 
of  that  freedom  in  trade  which  the  law  secures  to  all,  because  specific 
wrongful  acts  cannot  be  shown  to  defeat  the  plaintiffs'  claim,  unless 
it  be  also  shown  that  such  acts  come  within  the  scojie  and  purpose  of 
the  organization.  Each  act  of  wrong,  outside  the  declared  and  real 
purpose  of  the  lodge,  stands  })y  itself,  to  be  answered  for  only  by  those 
who  join  in  its  perpetration. 

Decree  for  the  plaintiffs,  with  costs  against  the  individual 
defendants  only. 


SECT.  Ill]  RESTRAINT   OF    TRADE  89 

KEALEY  V.  FAULKNER 
Cuyahoga  Court  of  Commcjn  Plkas.     1907 

18  Ohio  Dec.  498 

Phillips,  J.  (orally).  There  is  a  demurrer  to  the  petition  and  the 
amendment  thereto,  on  the  ground,  first,  that  there  is  defect  of  parties 
defendant;  second,  that  the  petition  and  its  amendment  do  not  state 
a  ri^ht  of  action.  The  action  is  a  contest  between  the  factions  of  the 
Amalgamated  Window  (Uuss  Workers  of  America,  whicli  is  an  un- 
incorporated association  of  j^hiss  workers,  designated  as  gla.ss  l)l<nvers, 
gatherers,  flatttJiiers  and  cutters,  and  comprising  about  six  thousand 
men.  The  phiintifTs  are  representatives  of  the  two  trades,  flatteners 
and  cutters,  who  chiim  that  they  have  not  received  fair  treatment 
from  the  hands  of  the  organization;  that  tlie  organization  is  illegal; 
that  they  have  contributetl  to  its  funds;  and  that  the  association  now 
has  a  fund  in  excess  of  8100,000.  They  ask  that  the  association  be 
dissolved,  that  a  receiver  be  appointed,  and  that  this  fund  be  dis- 
triinited  among  the  members  of  the  organization  according  to  their 
respective  individual  rights  in  it. 

The  plaintiffs  allege  that  they  are  representatives  of  the  .said  two 
classes,  in  whose  interest  this  action  is  brought,  and  they  make  the 
officers  of  th(>  organization,  and  perhaps  some  other  individual  mem- 
bers, defendants.  Tlu'V  allege  that  these  officers  control  the  funds  of 
the  association,  and  arc  in  charge  of  the  organization  for  the  purpose 
of  enforcing  its  by-laws,  and  conducting  its  internal  regulations.  In 
other  words,  it  appears  from  the  allegations  of  the  petition  that  these 
persons  who  are  nuuh^  defendants  an^  representatives  of  all  the  in- 
terests of  the  association  not  represented  by  the  plaintiffs.  No  other 
persons  are  made  defendants,  so  far  as  the  merits  of  the  action  are 
concerned.  Some  others  are  made  defendants  because  they  are  in 
possession  of  some  of  the  funds  of  the  association.  .  .  . 

In  support  of  tiie  petition  in  matter  of  substance,  it  is  claimed  that 
the  Amalgamated  Window  (Ua.ss  Workers  of  America,  by  its  ex- 
pressed purposes  and  its  conceded  methods,  is  a  menace  to  the  pubhc 
welfare,  and  mast  therefore  be  dealt  with  as  an  organization  that  is 
opposed  to  the  public  policy  of  the  country.  Th(>  demurrer  to  the 
petition  cannot  be  disi)()sed  of,  without  deciding  this  (piestion,  —  a 
(juestion  so  important,  not  only  in  the  instance,  but  upon  principle  as 
well,  that  I  have  given  to  its  consideration  all  the  care  and  contempla- 
tion that  circumstances  would  allow;  and  in  this  labor  I  have  been 
greatly  helpetl  l)y  the  zealous  industry  of  covmsel  on  i)oth  sides. 

I  have  endeavored,  with  what  diligence  I  might,  to  iliscover  the 
true  criteria  by  which  to  tletermine  whether  an  avowed  purjK)se,  or  an 
adopted  method,  stands /or  or  agninst  the  public  policy.  And  I  have 
tried  to  find  out  by  what  considerations  we  ought  to  determine  thi« 
limits  within  which  an  association  of  men  may  rightfully  control  a 


90  LEGALITY   OF   COMBINATION  [CHAP.  II 

productive  industiy,  and  to  what  extent  the  courts  may  interfere  with 
attempted  control.  .  .  . 

The  Amalgamated  Window  Glass  Workers  of  America  is  composed 
of  skilled  workmen,  —  artisans,  men  trained  to  dexterity  in  the  mak- 
ing of  window  glass.  Because  these  men  are  skilled  in  the  manufacture 
of  an  important  article  of  commerce,  they  are  able  to  contribute,  in  a 
special  way,  and  in  special  measure,  to  the  productive  industry  of  the 
community.  Therefore  the  community  has  a  special  interest  in  the 
industrial  freedom  of  these  men,  and  each  of  them.  One  of  these  men 
could  not  obligate  himself  not  to  work  at  his  trade.  He  might,  of 
choice,  decline  to  pursue  his  trade;  but  he  could  not  obligate  himself 
not  to  work  at  his  trade;  and  if  he  should  enter  into  a  contract  never 
again  to  work  at  his  trade,  the  courts  would  not  enforce  the  contract. 
Such  contract  would  be  against  public  p'olicy.  It  would  impair  the 
industrial  freedom  in  which  the  public  is  interested,  and  which  it  is 
the  duty  of  government  to  protect  and  promote.  It  is  this  indicium, 
the  impairment  of  industrial  freedom,  that  discriminates  and  vitiates 
such  contract. 

Our  Supreme  Court  has  said  of  such  engagement,  that  it  tends  to 
oppression  by  depriving  the  individual  of  the  right  to  pursue  a  trade 
with  which  he  is  most  familiar  and  by  depriving  the  community  of  the 
services  of  a  skilled  laborer;  and  it  tends  indirectly  to  affect  the  price 
of  such  things  as  would  be  produced  by  his  labor. 

And  for  the  same  reasons  that  one  man  may  not,  by  contractual 
obligation,  impair  or  limit  his  industrial  freedom,  any  number  of  men 
may  not.  And  the  individual  may  not,  by  union  with  others,  surren- 
der his  right  of  industrial  freedom  to  the  association.  The  tendency 
of  such  impairment  of  the  right  of  industrial  freedom  is  against  the 
general  welfare,  and  is  therefore  against  the  public  policy  which  is 
promotive  of  the  public  good.  .  .  . 

It  is  clear  that  the  thing  that  vitiates  a  contract,  under  a  principle 
of  the  law  which  we  call  "public  policy,"  is  not  an  intent  to  injure 
the  public,  but  a  tendency  to  the  prejudice  of  the  public.  Actual  in- 
jury is  never  required  to  be  shown;  it  is  the  tendency  to  the  prejudice 
of  the  public  good,  which  vitiates  contractual  relations. 

Within  the  limitations  I  have  stated,  men  may  combine  and  co- 
operate, for  the  advantageous  marketing  of  their  skill  and  labor,  or 
their  capital.  But  this  right  is  limited  to  an  advantageous  marketing 
of  labor  or  capital,  and  it  is  limited  by  the  right  of  the  pul)lic  to  have 
industrial  and  commercial  freedom  maintained  and  promoted.  What- 
ever of  purpose  or  of  method  transcends  these  bounds,  if  in  its  tend- 
ency it  is  opposed  to  the  public  welfare,  is  under  the  ban  of  the  law  and 
its  administration. 

The  undoubted  trend  of  modern  business  is  for  the  combination, 
both  of  capital  and  of  labor.  Combinations  of  capital  have  become  a 
necessity.  The  great  business  und(M*tnkings  of  these  times  could  not 
be  carried  on  without  it.    And  most  of  the  labor  is  now  employed  in 


SECT.  Ill]  RESTRAIN T   OF   TliADE  91 

large  aggregations  of  men.  There  is  a.s  nnirli  ri^lit,  and  I  think  aa 
much  reason,  for  hiljorcrs  to  eomhint;  for  tlicir  prot«'ction  and  iK'iicfit, 
a.s  U)V  capital  to  comldnc.  'lliis  incvitaWlc  Irndcncy  to  comhinc  can 
neither  he  ignored  or  repressed,  nor  sliould  it  he. 

Tliere  is  no  hiw  to  com|)el  a  man  or  a  hody  of  men  to  work,  and 
there  is  no  law  to  prevent  a  man  or  a  body  of  men  from  refusing  to 
work.  If  there  were  such  law,  it  would  violate  fundamental  projx'rty 
rights.  .\ny  man,  and  any  body  of  men,  may  work  for,  or  refu.se  to 
work  for,  whom  they  will.  And  the  same  freedom  Ix'longs  to  the  em- 
ployer of  laljor.  Tliese  are  fundamental  principles,  recognized  in  all 
the  decisions  that  are  authoritative. 

It  is  noticeable,  that  nowhere  do  the  hy-laws  of  this  organization 
state,  in  terms,  its  aims  and  purposes.  These  are  to  he  gathered  from 
the  several  provisions,  and  the  general  trend  of  the  hy-laws,  and  from 
the  averments  of  the  petition,  which,  for  the  purjxjses  of  this  denmrrer, 
are  admitted,  so  far  a.s  they  are  well  pU^aded. 

I  think  the  leading  general  puri)()se  of  the  association  is,  to  protect 
and  promote  the  interests  of  such  window  glass  workers  a.s  may  l>c 
members  of  the  association,  — a  purpose  that  is  not  only  lawful,  but 
commendable,  if  the  auxiliary  purposes,  and  the  methods  to  be  em- 
I)loved,  are  likewise  lawful. 

First.  It  is  one  of  the  auxiliary  purposes  of  this  organization  to  pre- 
vent any  one  not  a  member  thereof,  or  an  apprentice  authorized 
thereby,  from  working  at  the  trade  of  window  glass  hlower,  gatherer, 
flattener  or  cutter.  And  I  read  from  the  ])y-laws  that  are  mad<>  a  part 
of  the  petition.  Sec.  2,  page  18,  of  the  copy  that  has  been  furnished 
me: 

"No  one  not  a  member  of  the  .Amalgamat(>d  W'intlow  Cllass  Work- 
ers of  America  shall  be  allowed  to  work  at  any  of  the  four  trades, 
excepting  our  own  apprentices." 

Of  course,  this  policy,  if  enforced,  would  promote  the  intlividual 
advantage  of  the  memlx'rs  of  the  association.  But  how  as  to  the  other 
side  of  the  equation?  If  this  policy  is  enforced,  the  right  of  industrial 
freedom  is  thereby  limited  and  impaired,  and  the  public  is  deprived 
of  the  right  it  has  in  the  full  and  hvc  enjoymcMit  of  industrial  fn^edom 
by  every  meml)er  of  the  connnunity. 

Second.  This  organization  undertakes  to  limit  the  number  of  glass 
workers  in  this  country.  And  I  read  from  ixiges  8,  9,  and  10.  Sees.  3, 
4,  5,  13,  and  20: 

"Sec.  3.  That  asid(>  from  sons  and  brothers,  not  to  exceed  an  ad- 
ditional 10  p<T  cent  of  apprentices,  per  actual  pot  capacity  in  opera- 
tion, shall  1)0  granted  to  learn  the  trade  of  gathering,  for  bla.st  of 
1906-07. 

"Sec.  4.  That  not  to  exceed  10  per  cent  of  \ho  memlx^rship  of 
flatteners  shall  l)e  granted  to  learn  to  Hatten,  for  blast  of  19()t>-07. 

"Sec.  f).  That  not  to  exceed  10  per  cent  of  the  meml>ei-ship  of  the 
cutters  shall  be  granted  to  learn  to  cut,  for  blast  of  1900-07. 


92  LEGALITY   OF   COMBINATION  [CHAP.  II 

"  Sec.  13.  Any  member  attempting  to  learn  either  of  the  four  trades, 
or  making  apphcation,  without  the  proper  permission  and  papers, 
shall  be  fined  S25. 

"Sec.  20.  No  apprentice  certificate  shall  be  granted  to  any  one  who 
is  not  a  white  male,  and  has  not  attained  the  age  of  fifteen  years,  and 
must  be  of  good  moral  character  and  able  to  read  and  write." 

Part  of  that  section,  I  think,  is  right,  and  part  of  it  I  think  is 
wrong.  .  .  . 

Now,  the  provisions  that  I  have  read,  reach  bej-ond  the  member- 
ship of  this  organization.  They  undertake  to  prohibit  others  outside 
of  its  own  membership  from  learning  the  trade  of  glass  worker.  That 
is  interfering  with  fundamental  rights.  It  is  against  the  public  policy, 
because  it  is  for  the  public  good  that  all  men  should  be  free  to  select, 
adopt  and  learn  whatever  trade  they  may  desire,  and  then  to  pursue 
it.  Now,  interference  with  that  is  unlawful  because  it  is  against  the 
public  interest. 

Then  this  organization  places  restrictions  upon  the  labor  of  its  own 
members.  And  I  read  several  sections  on  that  point.  Page  10,  Sec.  25: 

"  No  member  of  Amalgamated  Window  Glass  Workers  of  America 
shall  be  allowed  to  work  at  any  nonunion  works.  For  the  violation  of 
this  law,  they  shall  be  subject  to  a  fine  at  the  discretion  of  the  execu- 
tive board." 

Page  19,  Sec.  7: 

"Any  member  signing  an  agreement  of  any  kind  to  secure  employ- 
ment, shall  be  fined  $25  for  first  offense,  S50  for  second  offense,  and  be 
suspended  from  membership  for  third  offense." 

Page  21,  Sec.  20: 

"No  member  of  this  association  shall  work  for  monthly  wages, 
unless  it  be  for  guarantee  to  secure  himself  against  loss  or  to  retain 
himself  in  an  undesirable  position." 

I  read  a  short  extract  from  a  case  in  2  Law  Reports,  622: 

"Every  workman  is  entitled  to  dispose  of  his  labor  on  his  own 
terms;  but  that  right  is  conditioned,  by  the  right  of  every  other  work- 
man to  do  the  like.  In  particular,  each  employe  is,  as  I  think,  at  lib- 
erty to  decide  for  himself  whether  he  will  or  will  not  work  along  with 
another  individual  in  the  same  employ." 

Page  25,  Sec.  18: 

"No  blower  or  gatherer  shall  work  faster  than  at  the  rate  of  nine 
rollers  per  hour,  excepting  in  case  of  roller  falling  off  or  pipes  breaking. 
No  blower  or  gatherer  shall  be  allowed  to  start  on  the  ninth  roller  until 
fifty  minutes  are  up;  this  to  also  apply  to  the  D.  S.  ])lower  and  gatherer 
according  to  their  limit  per  hour,  and  that  a  fine  of  .'fflO  ])e  imposed  on 
any  and  all  preceptors  for  the  nonenforcement  of  this  law." 

Page  27,  Sec.  31 : 

"No  cutter  shall  be  allowed  to  cut  for  more  than  3^  pots  of  S.  S. 
and  3  pots  of  D.  S." 


SECT.  Ill]  RESTRAINT   OF   TRADE  93 

Page  32,  Soc.  08: 

"Any  blower  or  gatherer  working  more  tlian  forty  hours  jx'r  week, 
shall,  for  the  first  olTense,  he  fined  $50,  and  for  the  second  ofTensi,'  Ijo 
expelled  from  the  orf^^aiiization."  .  .   . 

On  paf^es  29  and  30,  Sees.  45  and  5S,  are  other  restrictions  which 
have,  by  some  courts  been  held  to  be  lawful,  but  by  the  majority  of 
decisions  held  to  lie  illej^al;  I  will  not  take  time  to  rend  them. 

On  pa^e  30,  Sec.  53,  this  orj^aiiization  places  limitations  uixni  its 
members  as  to  workiiifi;  in  factoiies  where  machinery  is  used: 

"That  no  nieml)er  of  this  association  will  l)e  allowed  to  assist  or  tr^' 
to  operate  any  iron  man,  machine  or  invention,  for  the  purpose  of 
making;  window  glass,  except  it  be  und(T  the  protection  of  the  execu- 
tive board  or  with  the  consent  of  the  same.  I'or  violati(Jii  of  the  above 
a  member  or  members  shall  be  fined,  suspended  or  expelled  fi(jm  the 
association,  as  the  executive  boanl  may  decide." 

The  use  of  machinery,  when  it  nmltiplies  the  products  of  labor,  is 
in  the  interest  of  lal)or,  antl  is  in  the  interest  of  the  fi;eneral  welfare; 
any  jjrovision,  any  contractual  ol)ligation  which  stands  athwart  this 
principle  stands  athwart  the  policy-  that  tiie  law  enforces  for  the  i)ul)lic 
welfare. 

1  have  heard  it  stated,  —  I  do  not  know  how  true  it  is,  —  perhaps 
approximately  rifj;ht,  —  that  the  machine  energy  in  use  in  the  United 
States  amoimts  to  one  hundred  milli(nis  of  horse  power,  doing  the  work 
of  eight  hundred  millions  of  men,  and  that  this  machinery  is  operated 
by  twenty  millions  of  men.  So  that,  by  the  use  of  machinery  one  man 
is  enabled  to  do  the  work  and  make  the  production  of  forty  men  with- 
out machinery.  This  is  in  the  interest  of  everybody,  because  it  aug- 
ments the  fund  total,  that  is  the  product  of  labor. 

Then  this  organization  undertakes  to  control  the  manufacturers. 
I  read  Sec.  9  on  page  4  of  the  by-laws: 

"Every  manufacturer  engaging  members  of  the  Amalgamated 
Window  (Ilass  Workers  of  America,  shall  sign  the  agreement  of  the 
association  before  the  member  will  be  allowed  to  work." 

Page  27,  Sec.  36: 

"Each  manufacturer  shall  be  compelled  to  emi)loy  a  boss  cutter; 
and  said  boss  cutter  to  be  a  meml)er  of  the  Amalgamated  \\'indow 
Cdass  Workers  of  America,  and  he  shall  divide  and  distribute  tiie 
ordci*s  among  the  cutters." 

Every  manufacturer  is  compelled  to  employ  a  boss  cutter  who  is  to 
be  subject  to  the  direction  of  this  association.  And  on  page  28,  Sees* 
40  and  41: 

"Any  manufacturer  introducing  into  his  flattening  house,  blow 
furnace,  tanks,  or  pots,  new  inventions,  supposed  improvements,  shall, 
so  long  as  said  inviMitions  or  improvements  continue  to  be  an  experi- 
ment, or  until  it  shall  have  bi>en  demonstrated  that  it  will  not  Ix*  a 
loss  to  the  workuKMi  whose  work  is,  or  may  be.  alTected  by  said  ma- 
chine or  invention,"  etc. 


94 


LEGALITY   OF   COMBINATION 


[CHAP.  II 


Section  41 : 

"All  ten-pot  furnaces  shall  be  required  to  employ  three  flatteners, 
and  no  flattener  shall  flatten  more  than  four  pots,  unless  the  president 
and  executive  board  deem  it  absolutely  necessary." 

Now,  these  provisions,  if  enforced,  would  impair  the  right  of  the 
employer  to  conduct  his  business  according  to  his  own  notion  of  fit- 
ness. And  it  impairs  the  commercial  freedom  that  belongs  to  the  em- 
ployer just  as  industrial  freedom  belongs  to  the  individual  laborer. 
This  is  outside  of  the  membership  of  this  association,  and  beyond  any 
legitimate  purpose  that  it  can  have,  to  wit,  the  benefit  of  its  member- 
ship. .  .  . 

The  by-laws  of  this  association  contain  a  multitude  of  provisions, 
not  referred  to  by  me  because  it  would  take  too  long,  that  give  the 
organization  absolute  control  of  every  member  as  a  glass  worker,  and 
places  him  in  complete  servility  to  it.  Every  member  of  this  body  has 
surrendered  his  individuality,  and  his  industrial  freedom,  and  is  no 
longer  a  personal  factor  in  the  industrial  world.  This  is  violative  of 
fundamental  personal  rights,  and  of  public  rights,  and  is  therefore 
unlaw^ful. 

This  association  undertakes  to  exclude  all  glass  workers  not  mem- 
bers, and  to  limit  manufacturers  to  employment  of  none  but  its 
members.  This  is  deemed  to  constitute  a  monopoly.  .  .  . 
.  I  conclude,  that  the  Amalgamated  Window  Glass  Workers  of 
America,  by  its  expressed  purposes  and  its  conceded  methods,  exerts 
an  influence,  and  has  a  tendency,  against  the  public  policy  of  the  state, 
and  is  therefore  an  illegal  organization. 

Finding  that  the  Amalgamated  Window  Glass  Workers  of  America 
is  an  unlawful  organization,  because  its  purposes  and  its  methods  tend 
against  the  public  welfare,  it  is  too  plain  to  require  comment,  or  the 
citation  of  authorities,  that  the  plaintiffs  are  in  pari  delicto,  and  that 
they  do  not  come  into  court  with  clean  hands.  Indeed,  this  was  not 
seriously  controverted  in  argument. 

Stating  it  in  the  ense7nble,  the  attitude  of  the  plaintiffs  is  about 
this: 

"We  went  into  this-  organization  to  co-operate  in  these  unlawful 
purposes,  by  the  use  of  these  unlawful  methods.  We  are  getting  the 
worst  of  it;  and  if  we  simply  withdraw  from  the  association,  leaving 
it  free  to  exert  its  power  and  enforce  its  tactics  against  us,  we  shall 
only  make  our  situation  worse.  We  therefore  invoke  the  aid  of  the 
court  to  pull  down  the  structure  that  we  have  wrongfully  helped  to 
erect." 

Such  attitude  of  i)laintiffs  does  not  commend  them  to  the  court; 
and  if  the  scope  of  this  case  is  limited  to  th(>  granting  of  relief  to  the 
plaintiffs,  they  must  go  out  of  court,  and  must  be  left  to  bear  the  ills 
which  their  own  wrongs  have  helped  to  bring  upon  them. 

This  doctrine  is  established  in  Kahn  v.  Walton,  4()  Ohio  St.  195,  207 
[20  N.  K.  Rep.  203],  wliich  1  will  not  now  stop  to  read. 


SECT.  Ill]  RESTRAINT   OF   TRADE  95 

]U\\  it  is  claiinod  that  inawinuch  as  this  action  is  not  to  enforce  an 
illctral  contract,  but  is  in  (lisdffirmauce  of  an  excatlori/  contract,  the 
court  should  entertain  the  action,  not  for  the  l>enefit  of  tlie  phiintifTs, 
hut  in  the  interest  of  the  puhhc.   .   .   . 

1  tliink  the  case  made  in  this  petition  comes  within  that  doctrine. 
It  stands  as  an  exception  to  the  general  rule  that  parties  in  pari  de- 
lido  caimot  have  relief  in  a  court  of  justice.  This  contract  is  still 
executory;  the  whole  thinj^  is  in  fieri  —  the  wrongs  that  may  l>e  C(jm- 
mitted  afi;ainst  pui)lic  policy  are  still  to  he  conunitted;  it  is  to  he  per- 
jx^tuated;  it  is  executory.  And  this  action  is  not  hjused  upon  anj'  right 
of  these  plaintiffs  as  members  of  this  association;  it  is  not  to  jxTiX'tuate 
or  to  recognize  or  enforce  this  contract  between  the  nienil)ers  of  a 
society;  it  is  in  disalhrmance  of  a  contract.  It  is  to  accomplish  its 
destruction  and  thereby  relieve  the  public,  as  well  as  these  plaintiffs, 
from  the  consequences  of  a  continuation  of  this  society  and  the  por- 
p(>tuation  of  the  wrongs  against  the  pul)lic  that  its  provisions  would 
work.  .  .  . 

For  these  reasons  the  d  -murrer,  in  both  branches,  is  overruled. 

January  24,  lOOS.  This  cause  now  coming  on  for  trial,  the  plain- 
tiffs move  for  judgment  on  the  jx^tition.  As  the  case  now  stands,  the 
answer  having  gon(>  out  on  demurrer,  the  jx'tition  stands  without  an- 
swer. There  is  no  defense  here,  but  perhaps  there  should  be  formal 
proof  as  to  the  material  averments  of  the  petition.  There  are  two 
questions  presented:  First,  what  shall  be  the  decree,  so  far  as  its 
effect  upon  the  societ}'  is  concerned;  and  second,  what  shall  be  its 
effect,  if  any,  upon  the  fund  in  the  treasury  of  this  society? 

It  is  claimed  on  behalf  of  the  defendants  that  all  that  the  court  is 
interested  in,  and  all  that  the  court  is  authorized  to  do,  looking  now 
to  the  pul)lic  interest,  may  be  accomplished  by  eliminating  the  illegal 
features  of  this  contractual  relation,  l)}-  injunction,  and  leaving  the 
society  intact. 

At  the  former  hearing,  certain  provisions  of  the  by-laws  were 
pointed  out  as  illegal,  and  as  giving  character  to  the  w'hole  contractual 
relation,  —  not  all  that  were  held  to  be  illegal  or  found  to  be  illegal 
were  adverted  to  at  that  time,  and  need  not  be  now.  Of  course,  there 
are  provisions  in  the  articles  of  amalgamation,  and  there  are  provi- 
sions in  the  by-laws,  that  are  entirely  legal.  It  is  suggested  that  if 
these  prt)visions  be  left  standing,  and  only  tiie  noxious  provisions  be 
eliminat(Hl  In'  enjoining  the  .society  from  operating  imder  them,  or 
any  of  them,  that  will  accomplish  all  that  is  now  sought  to  be  accom- 
plished by  a  decree. 

I  do  not  think  this  can  be  done,  and  for  several  reasons.  I  think  it 
would  be  in  elT(>ct  the  making  by  the  court  of  a  new  contract  for  the 
members  of  this  organization.  A  contract  expin-gat«Hl  in  that  way 
would  not  be  the  contract  that  they  entered  into.  There  would  tlien 
stand  only  a  fragmentarj'  part  of  the  contract  that  was  agreed  to.    It 


96  LEGALITY'   OF   COMBINATION  [CHAP.  II 

would  lack  the  consent  of  the  members,  which  is  an  indispensable  pre- 
requisite to  a  contract.  No  member  of  this  organization  has  consented 
to  enter  into  the  contractual  relations  that  would  then  exist;  they 
could  not  be  bound  by  it  as  their  contract.  The  only  jural  relations 
these  members  have,  is  a  contractual  relation,  arising  from  the  terms 
and  conditions  contained  in  the  documents  to  which  thej-  have  con- 
sented. I  think  it  would  destroy  the  contract,  and  what  would  re- 
main, as  I  have  said,  would  lack  the  indispensable  contractual  element 
of  consent  of  the  parties.  The  court  is  never  authorized  to  make  a  con- 
tract; the  court  may  enforce  a  legal  contract;  the  court  may  undo  an 
illegal  contract ;  and  that  is  as  far  as  it  can  go. 

Another  objection  to  such  form  of  decree  would  be,  that  there  is  no 
legal  and  vaUd  part  of  this  contract.  The  contract  was  entered  into 
as  an  entirety.  All  the  documents,  resolutions,  etc.,  adopted  and 
agreed  to,  enter  into  it  and  form  the  contract ;  on  all  of  them  rests  the 
contractual  relation  among  the  members  of  this  association.  The 
illegal  features,  the  illegal  provisions  in  this  entire  contract  are  so 
numerous,  and  they  so  permeate  the  whole  contract  that  the  entire 
contract  is  vitiated.  It  cannot  be  said  that  some  of  these  things  make 
a  valid  contract.  There  never  has  been,  and  there  is  not  now,  any 
legal  contract  or  part  of  a  contract  existing.  There  is  no  legal  con- 
tractual relation  here  to  be  left  undisturbed.  There  was  no  legal  con- 
tract in  the  beginning;  ergo,  there  was  no  contract  in  the  beginning, 
and  there  is  therefore  no  contract  to  leave  in  force.  If  any  material 
part  of  this  contract  should  be  eliminated  by  injunction,  then  there  is 
nothing  left  to  which  the  members  have  consented;  there  is  nothing 
left  that  ever  had  in  law  any  validity.  You  cannot  inspire  this  con- 
tract with  validity  by  eliminating  some  parts  of  it.  If  such  disposition 
of  the  case  could  be  made,  if  I  believed  it  could  be  made,  I  would  be 
.  glad  to  leave  such  portions  of  the  contract  as  are  not  vulnerable,  stand, 
and  leave  the  organization  intact,  resting  upon  such  parts  of  an  at- 
tempted contract.  I  can  see  no  ground  upon  which  that  can-be  done 
legally.  It  is  not  the  illegal  features  of  the  contract  that  the  law  con- 
demns, it  condemns  the  contract  relation,  because  of  its  illegal  fea- 
tures. As  I  said,  these  illegal  features  permeate  the  whole  contract, 
and  give  to  it  its  illegal  character. 

It  is  suggested  (and  I  am  reminded  that  on  a  former  occasion  I  said) 
that  labor  organizations  are  to  l)e  fostered.  I  believe  that  not  only  are 
labor  organizations  legal,  but  I  think  it  has  come  to  be  ther  policy  of 
the  law,  and  of  the  courts  in  the  administration  of  the  law,  to  foster 
and  to  promote  labor  organizations.  I  tiiink  they  are  indispensable. 
I  think  when  they  are  legal  th(\y  are  promotive  of  public  good.  They 
are  not  only  a  benefit  to  the  mcml>ership  of  the  organization,  but  in 
taking  the  broad  view  of  the  matter,  I  think  they  are  really  promotive 
of  the  public  welfare.  I  l)elieve  that  it  is  the  tendency  of  the  law,  and 
the  tendency  of  its  administration,  to  promote  and  foster  such  organ- 
izations.  But  a  lalxjr  organization  is  promotive  of  the  public  welfaic. 


SECT.  Ill]  RESTRAINT   Or    TltADK  97 

and  is  to  b(!  protcctod  and  iimintairicd  in  tin*  administration  of  the 
law,  only  when  it  is  a  Ic^al  organization.  If  in  its  purijoscs  and  its 
nictluxls  it  contravenes  public  policy,  then  of  course  it  ouf^ht  not  to  Ixj 
promoted. 

I  think  that  the  view  that  ha.s  been  sugKcsted  c:innot  U-  o|K*rative 
in  this  case,  where  it  is  found  that  the  organization  itself,  in  its  funda- 
mental contractual  basis,  is  against  public  policy.  And  any  decree 
that  may  l)e  made  in  this  ca.se  must  not  be  mistaken  as  a  decree  aimed 
at  labor  organization;  it  can  be  aimed  only  at  this  organizati(jn,  ami 
because  of  the  illegality  that  enters  into  its  contractual  l»asis. 

So  I  do  not  see  how  I  can  do  otherwise  than  to  di.s.solve  this  organ- 
ization. I  would  not  make  such  decree  if  I  did  not  feel  comix'lled  to 
do  it.  Taking  the  view  of  tliis  fa.se  that  I  have  taken,  — -and  I  have 
arrived  at  it  after  full  argument  and  careful  consideration,  -  I  think 
it  is  the  only  decree  that  can  be  made.  X(Jthing  short  of  this  will  main- 
tain the  law;  nothing  short  of  this  will  promote  public  policy  in  this 
instance. 

Then,  subject  to  the  hearing  of  proof,  and  if  the  [iroof  shall  sup- 
port the  material  allegations  of  the  petition,  the  decree  will  be  that  this 
organization  is  di.s.solved.'  .   .  . 

Upon  the  hearing  of  evidence,  the  organization  was  dis.solved,  and 
a  receiver  appointed.* 


WooD.soN,  J.,  i.v  STATE  v.  STANDARD  OIL  CO. 

21S  Mu.  1,  370-372  (1909) 

^^'llile  it  is  true  those  statutes  arc  limited  in  their  scope  and  opera- 
tion to  persons  and  corporations  dealing  in  commodities,  and  do  not 
include  combinations  of  persons  engaged  in  labor  pursuits,  yet  it  must 
be  borne  in  mind  that  the  differentiation  between  labor  and  projx^rty 
is  so  great  that  they  do  not  belong  to  the  same  general  or  natural 
cla.ss'ficiUion  of  rights,  or  things,  and  have  never  been  so  recognized 
by  the  common  law,  or  by  legislative  enactments.    They  stand  upon 

'  Tho  roinainder  of  the  opinion  dealing  with  the  dispo.sition  of  the  money  held 
hy  the  organization  is  omitted.  The  Court  held  that  this  fund  should  1k'  dis- 
tril)uti'd  to  the  jx-rsons  who  paid  it  in  "in  some  equitable  projwrtion;  probably 
in  the  ratio  in  which  they  eontriljuted  to  it."  —  Ed. 

*  "I'pon  the  (juestion  of  the  legality  of  trade  unions  per  se  there  is  Renenil 
agreement  among  the  courts.  .  .  .  The  unions  afliliated  with  the  .\merican 
Federation  of  Labor,  however,  have  alwavs  been  regarded  as  lawful  organizations, 
except  in  two  decisions,  neither  of  which  was  rendered  by  a  court  of  final  juri.s- 
diction  (Kealey  v.  Faulkner,  IS  Ohio  Sup.  it  Common  Picas  Decisions,  4l).S; 
llitchman  Coal  it  Coke  Co.  v.  Mitchell.  '202  Fed.  .'S12  (1012)).  The  thwiry,  en- 
tertained in  Kngl.'ind  before  1S71  that  trade  unions  have  no  standing  in  court 
becau.se  th(>y  are  ilh'gal  combinations  in  restraint  of  trade,  never  gnincil  a  foot- 
hold in  the  United  States."  —  Conwnons  and  .Vndrews,  Principles  of  Labor 
Legislation  (1920  ed.),  pp.  102,  103. 

Compare,  however,  Froelich  v.  Musicians,  93  Mo.  App.  383,  391. 


98  LEGALITY   OF   COMBINATION  [CHAP.  II 

entirely  different  footings,  and  the  laws  pertaining  to  the  one  are  en- 
tirely different  from  those  pertaining  to  the  other. 

Labor  has  always  been  considered  in  the  nature  of  an  attribute  to 
man,  and  partakes  more  or  less  of  his  individuality^,  and  personal 
liberty,  and  is  inseparable  from  his  person.  Labor  and  labor  organiza- 
tions are  controlled  and  protected  by  laws  enacted  to  operate  largely 
upon  the  individuals  personally,  and  not  so  much  as  upon  the  products 
of  their  labor,  called  commodities;  while,  upon  the  other  hand,  com- 
modities are  nothing  but  property,  and  have  no  personal  connection 
with  the  owner  whatever. 

Legislation  affecting  property  and  property  rights  will  in  no  man- 
ner interfere  with  the  personnel  of  the  owner.   But  that  is  not  true  of 
laws  regarding  labor,  for  the  reason  that  the  moment  you  enact  laws 
affecting  labor,  that  moment  and  by  that  law  you  affect  the  personnel  ^ 
of  the  laborer.  .  .  . 

This  classification  of  the  laws  regarding  labor  and  property  has  al- 
ways been  recognized,  by  all  nations,  in  all  ages;  and  those  laws  which 
apply  to  the  one  have  never  been  considered  or  looked  upon  as  being 
special  and  class-legislation,  because  they  do  not  embrace  both.  .  .  . 

In  the  very  nature  of  things  a  law  could  not  be  enacted  which  would 
be  equally  applicable  to  persons  and  things  without  interfering  with 
the  personnel  and  liberty  of  the  laborer. 

The  Legislature  in  enacting  these  anti-trust  laws  well  knew  of  this 
natural  classification  of  commodities  and  labor,  and  enacted  laws  only 
embracing  the  former,  which  in  no  manner  deprives  their  owners  of 
any  of  their  legal  or  personal  rights,  while  if  they  had  also  embraced 
labor  combinations,  they  would  have  entrenched  upon  the  personal 
rights  of  the  labor. 

Viscount  Haldane,  L.  C,  in  NORTH  WESTERN 
SALT  CO.  Ltd.  v.  ELECTROLYTIC  ALKALI  CO.  Ltd. 
[1914]  A.  C.  461,  469  (1914) 

Unquestionably  the  combination  in  question  was  one  the  purpose 
of  which  was  to  regulate  supply  and  keep  up  prices.  But  an  ill-regu- 
lated supply  and  unremunerative  prices  may,  in  point  of  fact,  be  dis- 
advantageous to  the  public.  Such  a  state  of  things  may,  if  it  is  not 
controlk^d,  (h-ive  manufacturers  out  of  business,  or  lower  wages,  and 
so  cause  unempk)ymcnt  and  labour  disturbance.  It  must  always  be 
a  question  of  circumstances  whether  a  combination  of  manufacturers 
in  a  particular  trade  is  an  evil  from  a  public  point  of  view.  The  same 
thing  is  true  of  a  supposed  monopoly.  In  the  present  case  there  was 
no  attempt  to  establish  a  real  monopoly,  for  tiiere  miglit  have  been 
great  competition  from  abroad  or  from  other  parts  of  these  islands 
than  the  part  which  was  the  field  of  the  agreement.* 

'  In  the  same  rase,  Lord  Parker  of  WaddiriKton  (p.  479)  said:  "The  competi- 
tion between  s;ilt  producers  witliin  tlie  area  covered  by  the  agreement  of  September 


SECT.  IVl  PERMANENT    LABOR    COMBINATIONS  99 

Section  4.    Lryalily  of  Permanent  Labor  Cambinations  in  the 
United  Statea 

CASE  OF  THE  PHILADELPHIA  CORDWAIXERS 
Mayor's  Court,  Philadelphia,  Pa.     ISUG 
Commons  &  Oilmore,  Doc.  Hist.,  Vol.  Ill,  pp.  5&-248  ' 

Indictinont  for  coii.spira(;y  to  raise  wascs. 

The  clcfciuhints,  journcvincn  conlwaiiuTs  of  the  city  of  Phila- 
delphia, "coiitrivinK,  and  intending  unjustly  and  oppressively,  to  in- 
creiuse  and  auj^nient  the  prices  and  rates  usually  paid  and  alhnved  to 
them  and  other  artificers"  for  tlieir  work  and  labor,  were  indicted  for 
combining,  conspiring,  confederating  and  unlawfully  agreeing  to- 
gether not  to  work  and  labor  for  wages  below  a  certain  set  schedule, 
fixed  al)ove  the  ordinary  rates  custoniarih'  paid.  The  indictment 
further  charged  that  the  defendants  conspired  and  confederated  "to 
prevent  by  threats,  menaces,  and  other  unlawful  means,"  other  artif- 
icers from  working  in  the  art  and  occupation  of  a  cordwainer,  for 
wages  below  tlie  fixed  schedule  of  rates;  and  that  the  defendants  "un- 
lawfully, perniciously,  and  tleceit fully  designing  and  intending  to 
form  and  unite  themselves  into  a  clul:)  and  coml)inat ion,"  assembling 
together  for  that  purpose  did  "unjustly  and  corruptly  conspire,  com- 
bine, confederate,  and  agi'cc"  that  none  of  them  should  after  a  certain 
date  work  for  any  master  or  person  who  should  employ  any  cordwainer 
infringing  or  breaking  any  of  their  rules,  orders,  or  by-laws,  "and  that 
they  would  by  threats  and  menaces  and  other  injuries,  prevent  any 
other  workmen  and  journeymen  from  working  for  such  ma.ster";  and 
that  in  pursuance  of  the  aforementionetl  conspiracy  the  defendants 
have  refused  to  work  at  th(^  usual  rates  and  prices  given  to  artificers, 
workmen,  and  journeymen  in  the  art  and  occupation  of  a  cordwainer.' 

Mr.  Levy.  ...  If  this  enquiry-  had  been  confined  to  its  proper  ob- 
ject and  its  merits,  it  need  not  have  been  extended  to  the  length  to 
which  it  has  been  drawn  out,  but  many  circumstances  foreign  to  the 
case  have  been  brought  into  view.  An  attempt  has  been  made  to 
shew  that  the  spirit  of  the  revolution  and  the  principle  of  the  com- 

11,  1906,  either  inter  se  or  with  fyilt  producers  outside  this  area  may  have  been 
so  drastic  that  some  combination  liinitinK  output  and  renulatinp  com|)etition 
within  the  area  so  as  to  secure  reasonable  prices  may  have  Irhmi  necessiiry,  not 
only  in  the  interests  of  the  sah  producers  themselves,  but  in  the  interest  of  the 
pul)hc  generally,  for  it  cannot  be  to  the  pubhc  ailvantagc  that  tlie  trade  of  a  hirpe 
area  should  be  ruined  by  a  cut-throat  comiwtition." 

Compare  Harwood  c.  Millar's  Timl)er  A  Trading  Co.,  [19171  1  K.  H.  m').  :U7. 

See  Kales,  Restraint  of  Trade,  §  72. 

'  .\  Documentary  History  of  American  Industriid  Society,  edited  by  Com- 
mons, Philli|)s,  (lilmore,  Sunnier,  and  Andrews.  Vols.  3  and  1  on  I>!il)or  Con- 
spiracy Ca.><es,  edited  bv  John  H.  Commons  and  Eugene  A.  (lilmore  (The  Arthur 
H.  Clark  Co..  Cleveland,  Ohio). 

*  This  short  statement  Ls  substituted  for  the  formal  indictment.  —  Ed. 


100  LEGALITY   OF   COMBINATION  [CHAP.  II 

mon  law,  are  opposite  in  this  case.  That  the  common  law,  if  applied  in 
I    this  case,  would  operate  an  attack  upon  the  rights  of  man.    The  en- 
quiry on  that  point  was  unnecessary  and  improper.  .  TT' 

It  is  proper  to  consider,  is  such  a  combination  consistent  with  the 
principles  of  our  law,  and  injurious  to  the  public  welfare?  The  usual 
means  by  which  the  prices  of  work  are  regulated,  are  the  demand  for 
the  article  and  the  excellence  of  its  fabric.  Where  the  work  is  well 
done,  and  the  demand  is  considerable,  the  prices  will  necessarily  be 
high.  Where  the  work  is  ill  done,  and  the  demand  is  inconsiderable, 
they  will  unquestionably  be  low.  If  there  are  many  to  consume,  and 
few  to  work,  the  price  of  the  article  will  be  high :  but  if  there  are  few  to 
consume,  and  many  to  work,  the  article  must  be  low.  Much  will  de- 
pend too,  upon  these  circumstances,  whether  the  materials  are  plenty 
or  scarce;  the  price  of  the  commodity,  will  in  consequence  be  higher  or 
lower.  These  are  the  means  by  which  prices  are  regulated  in  the  nat- 
ural course  of  things.  To  make  an  artificial  regulation,  is  not  to  regard 
the  excellence  of  the  work  or  quality  of  the  material,  but  to  fix  a  posi- 
tive and  arbitrary  price,  governed  by  no  standard,  controuled  by  no 
impartial  person,  but  dependant  on  the  will  of  the  few  who  are  in- 
terested; this  is  the  unnatural  way  of  raising  the  price  of  goods  or 
work.  This  is  independent  of  the  number  of  customers,  or  of  the 
quality  of  the  material,  or  of  the  number  who  are  to  do  the  work.  It 
is  an  unnatural,  artificial  means  of  raising  the  price  of  work  beyond  its 
standard,  and  taking  an  undue  advantage  of  the  public.  Is  the  rule  of 
law  bottomed  upon  such  principles,  as  to  permit  or  protect  such  con- 
duct? Consider  it  on  the  footing  of  the  general  commerce  of  the  city. 
Is  there  any  man  who  can  calculate  (if  this  is  tolerated)  at  what  price 
he  may  safely  contract  to  deliver  articles,  for  which  he  may  receive 
orders,  if  he  is  to  be  regulated  by  the  journeymen  in  an  arbitrary  jump 
from  one  price  to  another?  .  .  .  AVliat  then  is  the  operation  of  this 
kind  of  conduct  upon  the  commerce  of  the  city?  It  exposes  it  to  in- 
conveniences, if  not  to  ruin;  therefore,  it  is  against  the  public  wel- 
fare. .  .  .  Such  a  practice  would  take  away  all  the  excitement 
to  excel  in  workmanship  or  industry.  Consider  the  effect  it  would 
have  upon  the  whole  community.  If  the  masters  say  they  will  not  sell 
under  certain  prices,  as  the  journeymen  declare  they  will  not  work  at 
certain  wages,  they,  if  persisted  in,  would  put  the  whole  body  of  the 
people  into  their  power.  Shoes  and  boots  are  articles  of  the  first  neces- 
sity. If  they  could  stand  out  thnn^  or  four  weeks  in  winter,  they  might 
raise  the  price  of  boots  to  thirty,  forty,  or  fifty  dollars  a  pair,  at  least 
for  some  time,  and  until  a  competent  supply  could  be  got  from  other 
places.  In  every  point  of  view,  this  measure  is  pregnant  with  public 
mischief  and  private  injury  .  .  .  tends  to  demoralize  the  workmen 
.  .  .  destroy  the  trade  of  the  city,  and  leaves  the  pockets  of  the  whole 
community  to  the  discretion  of  the  concerned.  If  these  evils  were  un- 
provided for  by  the  law  now  existing,  it  would  be  necessary  that  laws 
should  be  made  to  restrain  them. 


SECT.  IV]  PERMANENT   LABOR   COMBINATIONS  101 

What  ha.s  been  the  coiKliict  of  tlic  defendants  in  this  instance? 
They  belong  to  an  association,  the  object  of  which  is,  that  every  per- 
son who  follows  the  trade  of  a  journeyman  shoemaker,  nmst  l)e  a  mem- 
ber of  their  bod}'.  The  api)rentice  immedijitely  iii)on  Iwcominj;  free, 
and  the  jounieyniaii  who  comes  here  from  distant  places,  are  all  con- 
sidered meml)ers  of  this  institution.  If  the}'  do  not  join  the  body,  a 
term  of  reproach  is  fixed  upon  them.  The  memlM-rs  of  the  body  will 
not  work  with  them,  and  they  refuse  to  board  or  lodge  with  them. 
The  conse(|U('nc('  is,  that  every  one  is  compelled  to  join  the  society. 
It  is  in  evidence,  that  the  defendants  in  this  action  all  took  a  part  in 
the  last  attempt  to  raise  their  wages;  .  .  .  Keimer  wa.s  their  secre- 
tary, and  the  others  were  employed  in  giving  notice,  and  were  of  the 
tramping  committee.  If  the  purpose  of  the  a.'^sociation  is  well  under- 
stood, it  will  l)e  found  they  leave  no  individual  at  liberty  to  join  the 
society  or  reject  it.  They  compel  him  to  become  a  member.  Is  there 
any  rea.son  to  suppo.se  that  the  laws  are  not  competent  to  redress  an 
evil  of  this  magnitude?  .   .  . 

It  is  in  the  volumes  of  th<>  comTnoii  law  we  are  to  .seek  for  informa- 
tion in  the  far  greater  number,  as  well  as  the  most  important  cau.ses 
that  come  before  our  tribunals.  .  .  .  Its  rules  are  the  result  of  the 
wisdom  of  ages.  It  says  there  may  be  cases  in  which  what  one  man 
may  do  with  offence,  many  combined  may  not  do  with  impunity.  It 
distinguishes  between  the  object  so  aimcnl  at  in  difTerent  transactions. 
If  the  purpo.se  to  be  obtained,  be  an  object  of  individual  interest,  it 
may  be  fairly  attempted  by  an  individual.  .  .  .  Many  are  pro- 
hibited from  combining  for  the  attainment  of  it. 

^^'hat  is  the  case  now  before  us?  ...  A  combination  of  workmen 
to  raise  their  wages  may  l)e  considered  in  a  two  fold  point  of  view: 
one  is  to  benefit  themselves  .  .  .  the  other  is  to  injure  those  who  do 
not  join  their  society.  The  rule  of  law  condemns  both.  If  the  rule  be 
clear,  we  are  bound  to  conform  to  it  even  though  we  do  not  compre- 
hend the  principle  upon  which  it  is  founded.  We  are  not  to  reject  it 
because  we  do  not  see  the  rea.son  of  it.  It  is  enough,  that  it  is  the  will 
of  the  majority.  It  is  law  because  it  is  their  will  —  if  it  is  law,  there 
may  be  good  reasons  for  it  though  we  cannot  find  them  out.  But  the 
rule  in  this  case  is  pregnant  with  sound  sense  and  all  the  authorities 
are  clear  upon  the  subject.  Hawkins,  the  greatest  authority  on  the 
criminal  law,  has  laid  it  do^^Tl,  that  a  combination  to  maintaining  one 
another,  carrying  a  particular  object,  whether  true  or  false,  is  criminal 
.  .  .  the  authority  cited  from  S  ^fod.  Rep.  does  not  rest  merely  upon 
the  reputation  of  that  lu)ok.  He  gives  you  oth(>r  authorities  to  which 
he  refers.  It  is  adopted  by  Blackstone,  and  laid  down  as  the  law  by 
Lord  Mansfield  1793,  that  an  act  innocent  in  an  indiviilual.  is  ren- 
dered criminal  by  a  confederacy  to  effect  it.   .   .   . 

It  is  now,  th(>refore,  \vH  to  you  upon  the  law.  and  the  evidence,  to 
find  the  verdict.  If  you  can  reconcile  it  to  your  consciences,  to  find 
the  defendants  not  guilty,  you  will  do  .'^o;  if  not.  the  alternative  that 
remains,  is  a  verdict  of  guilty.  .  .  . 


102  LEGALITY    OF    COMBINATION  [CHAP.  II 

Verdict.  We  find  the  defendants  guilty  of  a  combination  to  raise 
their  wages.  .  .  . 

And  the  court  fined  the  defendants  eight  dollars  each  with  costs  of 
suit,  and  to  stand  committed  till  paid. 


PEOPLE  i.  MELVIN 

CouKT  OF  General  Sessions,  New  York  City.     1810 

2  Wheeler  C.  C.  {N.  Y.)  262 

The  defendants  were  indicted  for  a  conspiracy.  The  [first  count  of 
the]  indictment  stated  that  the  defendants  being  workmen  and  jour- 
nejTiien  in  the  art,  mystery,  and  manual  occupation  of  cordwainers,  on 
the  18th  October,  1809,  etc.,  unlawfully,  perniciouslj'-,  and  deceitfully 
designing  and  intending  to  form  and  unite  themselves  into  an  unlawful 
club  and  combination,  and  to  make  and  ordain  unlawful  by-laws, 
rules,  and  orders  among  themselves,  and  thereby  to  govern  them- 
selves and  other  workmen  in  the  said  art,  and  unlawfully  and  imjustly 
to  extort  great  sums  of  money  by  means  thereof,  on  the  day  and  year 
aforesaid,  with  force  and  arms,  at,  etc.,  together  with  divers  other 
workmen  and  journeymen  in  the  same  art,  etc.  (whose  names  to  the 
jury-  are  yet  unknown),  did  unlawfully  assemble  and  meet  together, 
and  being  so,  etc.,  did  then  and  there,  unjustly  and  corruptly  con- 
spire, combine,  confederate,  and  agree  together,  that  none  of  them, 
the  said  conspirators,  after  the  said  18th  October,  would  work  for  any 
master  or  person  whatsoever,  in  the  said  art,  mystery,  and  occupation, 
who  should  employ  any  workman  or  journeyman,  or  other  person  in 
the  said  art,  not  being  a  member  of  the  said  club  or  combination,  after 
notice  given,  etc.,  to  discharge  such  workman,  etc.,  from  the  employ 
of  such  master,  etc.,  to  the  great  damage  and  oppression  not  only  of 
their  said  masters,  employing  them  in  said  art,  etc.,  but  also  of  divers 
other  workmen  and  journeymen  in  the  said  art,  mystery,  and  occupa- 
tion, to  the  evil  example,  etc.,  and  against  the  peace,  etc.  [Other 
similar  counts  followed.]  .  .  . 

The  charge  of  the  court  was  then  delivered  by  His  Honour  The 
Mayor,  to  the  following  effect. 

He  observed  there  were  two  points  of  view  in  which  the  offence  of  a 
conspiracy  might  be  considered;  the  one  where  there  existed  a  com- 
bination to  do  an  act,  unlawful  in  itself,  to  the  prejudice  of  other  per- 
sons; the  other  where  the  act  done,  or  the  object  of  it,  was  not  unlaw- 
ful, but  unlawful  means  were  used  to  accomplish  it.  As  to  the  first, 
there  could  be  no  doubt  that  a  combination  to  do  an  unlawful  act  was 
a  conspiracy.  The  second  depended  on  the  common  principle  that 
the  goodness  of  the  end  would  not  justify  improper  means  to  obtain 
it.  If,  therefore,  in  the  present  case,  tlie  d(>fendants  had  confedcnatcd 
either  to  do  an  unlawful  act,  to  the  injury  of  others,  or  to  make  use  of 
unlawful  means  to  obtain    their  ends,  they  would  be  Uable  to  the 


SECT.  IV]  PERMANENT   LABOR   COMBINATIONS  103 

C'harKo  of  a  fonspinu-y.  He  olworvod,  tliat  the  court  flirl  not  moan  to 
say,  nor  did  the  facts  in  llio  ca.s('  require  them  to  decide,  wJietlH-r  an 
agreement  not  to  work,  except  for  certain  wages,  would  amount  to 
this  olTence,  without  any  unlawful  means  taken  to  enforce  it. 

Much  has  been  said  as  to  the  application  of  the  conunon  law  of 
iMigland  to  the  cjise.  The  absurdities  of  the  ancient  comm<jn  law,  and 
also  of  the  statute  law  (jf  lOngland,  had  been  exhibited  in  the  strongest 
light.  It  waa  well  known,  that  many  of  the  ancient  rules  of  the  com- 
mon law  on  this  and  other  subjects  had  been  exploded  or  In-come 
obsolete,  and  that  little  of  the  mass  of  absurdities  complained  of  by 
the  defendants'  counsel,  remained  in  force  even  in  l^ngland.  In  this 
state;  the  court  could  not  be  at  a  lo.ss  in  deciding  how  far  the  common 
law  of  England  was  applicable.  ...  No  alteration  having  been  made 
by  our  constitution  or  laws,  the  common  law  of  England,  as  it  existed 
at  the  ix'riod  Uust  mentioned,  must  l)e  d(>emed  to  be  applicable,  and  by 
that  law  the  principles  already  stated  a[)peared  to  be  well  established. 
No  precedents,  it  was  true,  of  convictions  or  judgments  upon  them 
had  been  produced  from  our  own  courts,  but  no  strong  inference  could 
be  drawn  from  that,  as  until  lately  such  precedents  had  not  been 
pres(Tved,  and  no  printed  reports  of  adjudged  cases  had  been  pub- 
lisheil. 

The  injury  produced  by  unlawful  combinations  might  affect  any 
person  or  number  of  persons,  as  in  the  present  ca.se  the  master  work- 
men, or  the  fellow  journeymen  of  the  defendants,  or  any  other  in- 
dividuals. It  appi^ared  in  evidence,  that  the  society  of  journeymen,  of 
which  the  defendants  were  members,  had  established  a  constitution, 
or  certain  rules  for  its  government,  to  which  the  d(>fendants  had  as- 
sented, and  which  they  had  endeavoured  to  enforce.  These  rules  were 
made  to  operate  on  all  the  members  of  the  society,  on  others  of  their 
trade  who  were  not  members,  and  through  them  on  the  master  work- 
men, and  all  were  coerced  to  submit,  or  else  the  membei-s  of  the  soci- 
ety, which  comprehend  the  best  workmen  in  the  city,  were  to  stop  the 
work  of  their  employers.  One  of  the  regulations  even  recjuired  that 
every  person  of  their  trade,  whom  they  thought  worthy  of  notice, 
should  become  a  member  of  the  society,  and  of  course  become  subject 
to  its  rules,  and  in  case  of  neglect  or  refusal,  it  imposed  fines  on  the 
person  guilty  of  disobedience.  AMien  the  soci(>ty  determined  on  any 
measure,  it  found  no  diiliculty  in  carr^-ing  it  into  execution.  If  its 
ordinary  functions  failed,  it  enforced  oboflience  by  decreeing  what  was 
called  a  strike  against  a  particular  shop  that  had  transgres.sed,  or  a 
general  turn  out  against  all  the  shoj^s  in  the  city,  terms  which  had  Ihhmi 
explained  by  the  witnesses,  and  were  sufliciently  undtM-stood.  These 
steps  were  generally  decisive,  and  compelleil  submi.s^^ion  in  all  con- 
cerned. 

Whatever  might  be  the  motives  of  the  defendants,  or  their  object, 
the  means  thus  (Muployed  were  arbitrary  and  unlawful,  and  their  hav- 
ing lu'cii  (liicrted  against  several  iiidi\  idiials  ii\  the  presi'nt  ca-^o,  it  was 


104  LEGALITY   OF   COMBINATION  [CHAP.  II 

brought,  in  the  opinion  of  the  court,  within  one  of  the  descriptions  of 
the  offence  which  has  been  given. 

The  jury  retired,  and  shortlj-  after  returned  a  verdict  against  the 
defendants. 

The  sentence  was  then  passed  by  His  Honour  The  Mayor,  who  ob- 
served to  the  defendants,  that  the  novelty  of  the  case,  and  the  general 
conduct  of  their  body  composed  of  members  useful  in  the  conmiunity, 
inclined  the  court  to  believe  that  they  had  erred  from  a  mistake  of  the 
law,  and  from  supposing  that  they  had  rights  upon  which  to  found 
their  proceedings.  That  they  had  equal  rights  with  all  other  members 
of  the  community  was  undoubted,  and  they  had  also  the  right  to  meet 
and  regulate  their  concerns,  and  to  ask  for  wages,  and  to  work  or  re- 
fuse; but  that  the  means  they  used  were  of  a  nature  too  arbitrary  and 
coercive,  and  which  went  to  deprive  their  fellow  citizens  of  rights  as 
precious  as  any  they  contended  for.  That  the  present  object  of  the 
court  was  rather  to  admonish  than  to  punish;  but  an  adjudication 
upon  the  subject  being  now  solemnly  had,  it  was  recommended  to 
them  so  to  alter  and  modify  their  rules  and  their  conduct,  as  not  to 
incur  in  future  the  penalties  of  the  law.  —  They  were  fined  each  one 
dollar,  with  the  costs. ^ 


COMMONWEALTH  v.  HUNT 
Supreme  Judicial  Court  of  Massachusetts.     1842 

4  Metcalf,  111 

Shaw,  C.  J.  .  .  .  The  counsel  for  the  defendants  contended,  and 
requested  the  court  to  instruct  the  jury,  that  the  indictment  did  not 
set  forth  any  agreement  to  do  a  criminal  act,  or  to  do  any  lawful  act 
by  any  specified  criminal  means,  and  that  the  agreements  therein  set 
forth  did  not  constitute  a  conspiracy  indictable  by  any  law  of  this 
Commonwealth.  But  the  judge  refused  so  to  do,  and  instructed  the 
jury,  that  the  indictment  did,  in  his  opinion,  describe  a  confederacy 
among  the  defendants  to  do  an  unlawful  act,  and  to  effect  the  same  b}^ 
unlawful  means;  that  the  society,  organized  and  associated  for  the 
purposes  described  in  the  indictment,  was  an  unlawful  conspiracy, 
against  the  laws  of  this  Commonwealth;  and  that  if  the  jury  believed, 
from  the  evidence  in  the  case,  that  the  defendants,  or  any  of  them,  had 
engaged  in  such  a  confederacy,  they  were  l)oinul  to  find  such  of  them 
guilty. 

We  are  here  carefully  to  distinguish  between  the  confederacy  s(^t 
forth  in  the  indictment,  and  the  confederacy  or  association  contained 
in  the  constitution  of  the  Boston  Journeymen  Bootmakers'  Society, 

'  For  a  more  complete  account  of  this  very  interesting  case,  see  Yates  Select 
(N.  Y.)  Cases,  112-278;  also  Commons  &  Gilmore,  Documentary  Hist,  of  Am. 
Industr.  Soc.  vol.  3,  pp.  251-38.5;  also,  American  State  Trials,  vol.  13,  pp.  576- 
7Q1 


SECT.  IV]  PERMANENT   LABOR   COMBINATIONS  105 

as  stated  in  tlic  little  printed  hook,  which  was  admitted  as  evidence  on 
the  trial.  Because,  th(nij^ii  it  was  thus  aihnitted  as  evidence,  it  would 
not  warrant  a  conviction  for  any  thing  not  stated  in  the  indictment. 
It  was  proof,  as  far  as  it  went  tf)  supi)()rt  the  avennents  in  the  indict- 
ment. If  it  containetl  any  criminal  matter  not  .set  forth  in  the  indict- 
ment, it  is  of  no  avail.  The  (|uestion  then  presents  itself  in  the  same 
form  as  on  a  motion  in  airest  of  judgment. 

The  first  count  set  forth,  that  the  defendants,  with  divers  others  un- 
known, on  the  day  and  at  the  place  named,  heiiig  workmen,  an<l  jour- 
neymen, in  the  art  and  occupation  of  i)ootmakers,  unlawfully,  jx-rni- 
ciously  an<l  deceitfully  designing  and  intending  to  continue,  keep  up, 
form,  and  unite  them.selves,  into  an  unlawful  club,  .society  and  com- 
bination, ami  mak(?  unlawful  by-laws,  rules  and  ortlei-s  among  theni- 
selves,  and  thereby  govern  themselves  and  other  worknien,  in  the  .said 
art,  and  unlawfully  and  unjustly  to  extort  great  sums  of  money  by 
means  thereof,  did  unlawfully  a.s.semble  ami  meet  together,  and  being 
so  assembled,  ditl  unjustly  and  corruptlj-  conspire,  combine,  con- 
federate and  agree  together,  that  none  of  them  should  thereafter,  and 
that  none  of  them  would,  work  for  any  master  or  person  whatsoever, 
in  the  said  art,  mystery  and  occui)ation,  who  should  employ  any 
workman  or  journeyman,  or  other  jjerson,  in  the  said  art,  who  was  not 
a  member  of  saitl  club,  society  or  combination,  after  notice  given  him 
to  discharge  such  workman,  from  the  employ  of  such  master;  to  the 
great  damage  antl  oppression,  etc. 

Now  it  is  to  be  considered,  that  the  preamble  and  introductory  mat- 
ter in  the  indictment  —  such  as  unlawfully  and  deceitfully  designing 
and  intending  unjustly  to  extort  great  sums,  etc.  —  is  mere  recital, 
and  not  traversal )le,  and  therefore  cannot  aid  an  imix^rfect  averment 
of  the  facts  constituting  the  description  of  the  offence.  The  same  may 
be  said  of  the  concluding  matter,  which  follows  the  averment,  as  to  the 
great  damage  and  oppression  not  only  of  their  said  masters,  employ- 
ing them  in  .said  art  and  occupation,  but  also  of  clivers  other  workmen 
in  the  same  art,  mystery  and  occupation,  to  the  evil  example,  etc.  If 
the  facts  averred  constitute  the  crime,  these  arc  properly  stated  as  the 
legal  inferences  to  be  drawn  from  them.  If  they  do  not  constitute  the 
charge  of  such  an  offence,  they  cannot  be  aided  by  these  alleged 
consequences. 

Stripped  then  of  the.se  introductory  recitals  and  alleged  injurioiLs 
consequences,  and  of  the  qualifying  epithets  attached  to  the  facts,  the 
averment  is  this;  that  the  defcMidants  and  othei-s  fornunl  themselves 
mto  a  society,  and  agreed  not  to  work  for  any  person,  who  should  em- 
ploy any  journeyman  or  oth(M-  person,  not  a  memlx'r  of  such  society, 
alter  notice  given  him  to  discharge  such  workman. 

The  manifest  intent  of  the  association  is.  to  induce  all  tho.st»  en- 
gaged in  the  sam(>  occupation  to  beconu^  members  of  it.  Such  a  pur- 
pose is  not  unlawful.  It  would  give  them  a  power  which  might  l>e 
exerted   for   useful  and   honorable   purposes,   or  for  tlangerous  and 


106  LEGALITi^    OF    COMBINATION  [CHAP.  II 

pernicious  ones.  If  the  latter  were  the  real  and  actual  object,  and 
susceptible  of  proof,  it  should  have  been  specially  charged.  Such  an 
association  might  be  used  to  afford  each  other  assistance  in  times  of 
poverty,  sickness  and  distress;  or  to  raise  their  intellectual,  moral  and 
social  condition;  or  to  make  improvement  in  their  art;  or  for  other 
proper  purposes.  Or  the  association  might  be  designed  for  purposes  of 
oppression  and  injustice.  But  in  order  to  charge  all  those,  who  be- 
come members  of  an  association,  with  the  guilt  of  a  criminal  conspir- 
acy, it  must  be  averred  and  proved  that  the  actual,  if  not  the  avowed 
object  of  the  association,  was  criminal.  An  association  may  be  formed, 
the  declared  objects  of  which  are  innocent  and  laudable,  and  yet  they 
may  have  secret  articles,  or  an  agreement  communicated  only  to  the 
members,  by  which  they  are  banded  together  for  purposes  injurious  to 
the  peace  of  society  or  the  rights  of  its  members.  Such  would  un- 
doubtedly be  a  criminal  conspiracy,  on  proof  of  the  fact,  however 
meritorious  and  praiseworthy  the  declared  objects  might  be.  The  law 
is  not  to  be  hoodwinked  by  colorable  pretences.  It  looks  at  truth  and 
reality,  through  whatever  disguise  it  may  assume.  But  to  make  such 
an  association,  ostensibly  innocent,  the  subject  of  prosecution  as  a 
criminal  conspiracy,  the  secret  agreement,  which  makes  it  so,  is  to  be 
averred  and  proved  as  the  gist  of  the  offence.  But  when  an  association 
is  formed  for  purposes  actually  innocent,  and  afterwards  its  powers 
are  abused,  by  those  who  have  the  control  and  management  of  it,  to 
purposes  of  oppression  and  injustice,  it  will  be  criminal  in  those  who 
thus  misuse  it,  or  give  consent  thereto,  but  not  in  the  other  members 
of  the  association.  In  this  case,  no  such  secret  agreement,  varying  the 
objects  of  the  association  from  those  avowed,  is  set  forth  in  this  count 
of  the  indictment. 

Nor  can  we  perceive  that  the  objects  of  this  association,  whatever 
they  may  have  been,  were  to  be  attained  by  criminal  means.  The 
means  which  they  proposed  to  employ,  as  averred  in  this  coimt,  and 
which,  as  we  are  now  to  presume,  were  established  by  the  proof,  were, 
that  they  would  not  work  for  a  person,  who,  after  due  notice,  should 
employ  a  journeyman  not  a  member  of  their  society.  Supposing  the 
object  of  the  association  to  be  laudable  and  lawful,  or  at  least  not  un- 
lawful, are  these  means  criminal?  The  case  supposes  that  these  per- 
sons are  not  bound  by  contract,  but  free  to  work  for  whom  they  please, 
or  not  to  work,  if  they  so  prefer.  In  this  state  of  things,  we  cannot 
perceive,  that  it  is  criminal  for  men  to  agree  together  to  exercise  their 
own  acknowledged  rights,  in  such  a  manner  as  b(>st  to  sul)serve  their 
own  interests.  One  way  to  test  this  is,  to  consider  th&  effect  of  such  an 
agreement,  where  the  object  of  the  association  is  acknowledged  on  all 
hands  to  Ix;  a  laudable  one.  Suppose*  a  class  of  woikmen,  impressed 
with  the  manifold  evils  of  intiMnpciancc*,  should  agrcM'  with  each  other 
not  to  work  in  a  shop  in  which  ardent  spirit  was  furnished,  or  not  to 
work  in  a  shop  with  any  one  wlio  used  it,  or  not  to  work  for  an  em- 
ployer, who  should,  after  notice,  employ  a  journeyman  who  habitually 


SECT.   IV]  I'KIi.NLVNExN'T   LAliUK    COAIBINATIUX.S  107 

used  it.  The  coii.scquencc.s  inij^lit  be  the  same.  A  workiaun,  who 
sh(nil(l  still  persist  in  tlie  use  of  ardent  spirit,  would  find  it  more  diffi- 
cult to  {i;et  employment;  a  master  employinjj;  sueh  an  one  misht,  at 
times,  experience  inconvenience  in  his  work,  in  losinj^  the  services  of  a 
skiltiil  hut  iiilcmpcrutc  workman.  Still  it  .seems  to  us,  that  as  the 
object  would  be  lawful,  and  the  means  not  unlawful,  such  an  aji^ree- 
ment  could  not  be  pronounced  a  criminal  conspiracy. 

From  this  count  in  the  indictment,  we  do  not  understand  that  the 
agreement  was,  tiiat  the  tlefendants  would  icfu.se  to  w(»rk  for  an  em- 
pUn'er,  to  whom  they  were  bound  by  contract  for  a  certain  time,  in 
vifjlation  of  that  contract;  nor  that  they  would  insist  that  an  employer 
should  discharge  a  workman  engaged  Jjy  contract  for  a  certain  tiuje,  in 
violation  of  such  contract.  It  is  perfectly  consistent  with  every  thing 
stated  in  this  count,  that  the  eiTect  of  the  agreement  was,  that  when 
they  were  free  to  act,  they  would  not  engage?  with  an  emphjycr,  or  con- 
tinue in  his  employment,  if  such  employer,  when  free  to  act,  should 
engage  with  a  workman,  or  continue  a  workman  in  his  em[)loyment, 
not  a  UKMuber  of  the  association.  If  a  large  numi)er  of  men,  engaged 
for  a  certain  time,  should  combine  together  to  violate  their  contract, 
and  quit  their  employment  together,  it  would  present  a  very  different 
question.  Suppose  a  farmer,  emploj-ing  a  large  number  of  men,  en- 
gaged for  the  year,  at  fair  monthly  wages,  and  suppose  that  just  at  the 
moment  that  his  crops  were  n^ai-ly  to  harvest,  they  should  all  combine 
to  quit  his  service,  unless  he  would  advance  their  wages,  at  a  time 
when  other  laborers  could  not  be  obtained.  It  would  surelj-  be  a  con- 
spiracy to  do  an  unlawful  act,  though  of  such  a  character,  that  if  done 
l)y  an  individual,  it  would  lay  the  foundation  of  a  civil  action  only, 
and  not  of  a  criminal  prosecution.  It  would  be  a  case  very  different 
froni  that  .stated  in  this  count. 

The  second  count,  omitting  the  recital  of  unlawful  intent  and  evil 
disposition,  and  omitting  the  direct  averment  of  an  unlawful  cIuIj  or 
society,  alleges  that  the  tlefendants,  with  others  unknown,  did  as- 
semble, conspire,  confederate  and  agree  together,  not  to  work  for 
any  master  or  person  who  should  employ  any  workman  not  being  a 
member  of  a  certain  club,  society  or  combination,  called  the  Boston 
Journeymen  Bootmakers'  Society,  or  who  should  l)reak  any  of  their 
l)y-laws,  unless  such  workmen  should  pay  to  said  clul),  such  sum  as 
should  be  agreed  upon  as  a  penalty  for  the  breach  of  such  unlawful 
rules,  etc.;  and  that  by  moans  of  said  conspiracy  they  did  comjxd  one 
Isaac  B.  Wait,  a  master  cordwainer,  to  turn  out  of  his  employ  one 
JertMniah  Home,  a  journeyman  bootmaker,  etc.,  in  evil  example,  etc. 
So  far  as  the  averment  of  a  conspiracj-  is  concerned,  all  the  remarks 
made  in  reference  to  the  first  count  are  equally  applicable  to  this.  It 
is  simply  an  averment  of  an  agreement  amongst  them.s(>lves  not  to 
work  for  a  person,  who  should  employ  any  person  not  a  memivr  of  a 
c(M-tain  association.  It  sets  forth  no  illegal  or  criminal  purpose  to  1x3 
accomplished,  nor  any  illegal  or  criminal  means  to  be  adopt e<l  for  the 


108  LEGALITY   OF   COIMBINATION  [CHAP.  II 

accomplishment  of  any  purpose.  It  was  an  agreement,  as  to  the  man- 
ner in  which  they  would  exercise  an  acknowledged  right  to  contract 
with  others  for  their  labor.  It  does  not  aver  a  conspiracj-  or  even  an 
intention  to  raise  their  wages;  and  it  appears  by  the  bill  of  exceptions, 
that  the  case  was  not  put  upon  the  footing  of  a  conspiracy  to  raise 
their  wages.  Such  an  agreement,  as  set  forth  in  this  count,  would 
be  perfectly  justifiable  under  the  recent  English  statute,  by  which 
this  subject  is  regulated.  St.  6  Geo.  IV,  c.  129.  See  Roscoe,  Crim. 
Ev.  (2d  Amer.  ed.)  368,  369. 

As  to  the  latter  part  of  this  count,  which  avers  that  by  means  of 
said  conspiracy,  the  defendants  did  compel  one  Wait  to  turn  out  of 
his  employ  one  Jeremiah  Home,  we  remark,  in  the  first  place,  that  as 
the  acts  done  in  pursuance  of  a  conspiracy,  as  we  have  before  seen,  are 
stated  by  way  of  aggravation,  and  not  as  a  substantive  charge;  if  no 
criminal  or  unlawful  conspiracy  is  stated,  it  cannot  be  aided  and  made 
good  by  mere  matter  of  aggravation.  If  the  principal  charge  falls,  the 
aggravation  falls  with  it.   State  v.  Rickey,  4  Halst.  293. 

But  further;  if  this  is  to  be  considered  as  a  substantive  charge,  it 
would  depend  altogether  upon  the  force  of  the  word  "compel,"  which 
may  be  used  in  the  sense  of  coercion,  or  duress,  by  force" or  fraud.  It 
would  therefore  depend  upon  the  context  and  the  connexion  with 
other  words,  to  determine  the  sense  in  which  it  was  used  in  the  indict- 
ment. If,  for  instance,  the  indictment  had  averred  a  conspiracy,  by 
the  defendants,  to  compel  Wait  to  turn  Home  out  of  his  emplojTnent, 
and  to  accomplish  that  object  by  the  use  of  force  or  fraud,  it  would 
have  been  a  very  different  case;  especially  if  it  might  be  fairly  con- 
strued, as  perhaps  in  that  case  it  might  have  been,  that  Wait  was  un- 
der obligation,  by  contract,  for  an  unexpired  term  of  time,  to  employ 
and  pay  Horne.  As  before  remarked,  it  would  have  been  a  conspiracy 
to  do  an  unlawful,  though  not  a  criminal  act,  to  induce  Wait  to  violate 
his  engagement,  to  the  actual  injury  of  Horne.  To  mark  the  difference 
between  the  case  of  a  journeyman  or  a  servant  and  master,  mutually 
bound  by  contract,  and  the  same  parties  when  free  to  engage  anew,  I 
should  have  before  cited  the  case  of  the  Boston  Glass  Co.  v.  Binney, 
4  Pick.  425.  In  that  case,  it  was  held  actionable  to  entice  another  per- 
son's hired  servant  to  quit  his  employment,  during  the  time  for  which 
he  was  engaged;  but  not  actionable  to  treat  with  such  hired  servant, 
whilst  actually  hired  and  employed  by  another,  to  leave  his  service, 
and  engage  in  the  employment  of  the  person  making  the  proposal, 
when  the  term  for  which  he  is  engaged  shall  expire.  It  acknowledges 
the  esta])lisliod  principle,  that  every  free  man,  whotlu>r  skilled  la])orer, 
mechanic,  farmer  or  domestic  servant,  may  work  or  not  work,  or  work 
or  refuse  to  work  with  any  company  or  individual,  at  his  own  option, 
except  so  far  as  he  is  bound  by  contract.  But  whatever  might  be  the 
force  of  the  word  "compel,"  unexplained  by  its  connexion,  it  is  dis- 
armed and  rcndcM-ed  harmless  by  tlu>  precise  statement  of  the  means, 
by  which  such  compulsion  was  to  be  effected.    It  was  the  agreement 


SECT.  IV]  PERMANENT   LABOR    COMBINATIONS  109 

not  to  work  for  him,  by  which  they  compcllotl  Wait  to  decline  employ- 
ing Home  longer.  On  both  of  these  grounds,  we  are  of  opinion  that  the 
statement  made  in  this  second  count,  that  the  unhiwful  agreenjent  wa.s 
carried  into  execution,  mai<es  nc^  essential  dilTcicnce  between  tiiis 
and  the  first  count. 

The  third  count,  reciting  h  wicked  and  unlawful  intent  t(i  imixiv- 
erish  one  Jeremiah  Home,  and  hinder  him  from  followin^^  his  traclc  a.s 
a  bootmaker,  charffes  the  defendants,  with  others  unknown,  with  an 
unlawful  conspiracy,  by  wronp;ful  and  indirect  means,  to  impoveri.sh 
said  Home  and  to  deprive  and  hinder  him,  from  his  said  art  and  trade 
and  fjettiuK  his  support  thereby,  and  that,  in  pursuance  of  said  un- 
lawful combination,  they  did  unlawfully  and  indirectly  liinder  and 
prevent,  etc.,  and  fjreatly  impoverish  him. 

If  the  fact  of  dej)rivin^;  Jeremiah  Home  of  the  profits  of  his  bu-siness, 
by  whatever  means  it  mifr;ht  be  done,  would  be  unlawful  and  criminal, 
a  combination  to  compa.ss  that  object  would  be  an  unlawful  conspir- 
acy, and  it  would  be  unnecessary  to  state  the  means.  Such  seems  to 
have  been  the  view  of  the  court  in  The  King  v.  Eccles,  3  Doug.  337, 
though  the  case  is  so  briefly  reported,  that  the  rea.sons,  on  which  it 
rests,  are  not  very  obvious.  The  case  seems  to  have  gone  on  the 
ground,  that  the  means  were  matter  of  evidence,  and  not  of  averment ; 
and  that  after  vertlict,  it  wa.s  to  i)e  presumed,  that  the  means  con- 
templated and  used  were  such  as  to  render  the  combination  unlawful 
and  constitute  a  conspiracy. 

Suppose  a  baker  in  a  small  village  had  the  exdu-^ive  custom  of  his 
neighl)()rho(xl,  and  was  making  larg(>  profits  by  the  sale  of  his  bread. 
Supposing  a  number  of  those  neighbors,  believing  the  price  of  his 
bread  too  high,  should  propose  to  him  to  reduce  his  prices,  or  if  he  did 
not,  that  they  would  introduce  another  baker;  and  on  his  refusal,  such 
other  baker  should,  under  their  encourag(>ment,  .set  up  a  rival  estal)- 
lishment,  and  sell  his  bread  at  lowc^r  prices;  the  effect  would  \>v  to 
diminish  the  profit  of  the  former  baker,  and  to  the  same  extent  to  im- 
poverish him.  And  it  might  be  said  and  proved,  that  the  purpo.se  of 
the  ;i.s.sociates  was  to  diminish  his  profits,  and  thus  impoverish  him, 
though  the  ultimate  and  laudal)le  oi)ject  of  the  combination  was  t(^ 
reduce  the  cost  of  bread  to  themselves  and  their  neighlwrs.  The  same 
thing  may  be  said  of  all  competition  in  every  branch  of  trade  and  in- 
dustry; and  yet  it  is  through  that  competition,  that  the  best  intere.'^ts 
of  trade  and  industry  are  promoted.  It  is  scarcely  necessary  to  allude 
to  the  familiar  instances  of  opposition  lines  of  conveyance,  rival 
hotels,  and  the  thousand  other  instances,  where  each  strives  to  gain 
custom  to  himself,  bj*  ingenious  improvements,  by  increased  industry, 
and  by  all  the  means  by  which  he  may  lessen  the  i)rice  of  conunodities, 
and  tluM-el)y  dimini.sh  the  profits  of  others. 

We  think,  tluM'efore,  that  associations  may  be  ent(M-e(l  into,  the 
object  of  which  is  to  adopt  measures  that  may  have  a  tendency  to 
impoverish  nnother,  that  is,  to  diminish  hi>!  gains  and  profits,  and  yet 


110  LEGALITY   OF   COMBINATION  [CHAP.  II 

SO  far  from  being  criminal  or  unlawful,  the  object  may  be  highly 
meritorious  and  public  spirited.  The  legality  of  such  an  association 
will  therefore  depend  upon  the  means  to  be  used  for  its  accomplish- 
ment. If  it  is  to  be  carried  into  effect  by  fair  or  honorable  and  lawful 
means,  it  is,  to  say  the  least,  innocent;  if  by  falsehood  or  force,  it  may 
be  stamped  with  the  character  of  conspiracy.  It  follows  as  a  necessary 
consequence,  that  if  criminal  and  indictable,  it  is  so  by  reason  of  the 
criminal  means  intended  to  be  employed  for  its  accomplishment;  and 
as  a  further  legal  consequence,  that  as  the  criminality  will  depend  on 
the  means,  those  means  must  be  stated  in  the  indictment.  If  the  same 
rule  were  to  prevail  in  criminal,  which  holds  in  civil  proceedings  — 
that  a  case  defectively  stated  may  be  aided  by  a  verdict  —  then  a 
court  might  presume,  after  verdict,  that  the  indictment  was  supported 
by  proof  of  criminal  or  unlawful  means  to  effect  the  object.  But  it  is 
an  established  rule  in  crimmal  cases,  that  the  indictment  must  state  a 
complete  indictable  offence,  and  cannot  be  aided  by  the  proof  offered 
at  the  trial. 

The  fourth  count  avers  a  conspiracy  to  impoverish  Jeremiah  Home, 
without  stating  any  means;  and  the  fifth  alleges  a  conspiracy  to  im- 
poverish employers,  by  preventing  and  hindering  them  from  employ- 
ing persons,  not  members  of  the  Bootmakers'  Society;  and  these  re- 
quire no  remarks,  which  have  not  been  already  made  in  reference  to 
the  other  counts.  .  .  . 

It  appears  by  the  bill  of  exceptions,  that  it  was  contended  on  the 
part  of  the  defendants,  that  this  indictment  did  not  set  forth  any 
agreement  to  do  a  criminal  act,  or  to  do  any  lawful  act  by  criminal 
means,  and  that  the  agreement  therein  set  forth  did  not  constitute  a 
conspiracy  indictable  by  the  law  of  this  State,  and  that  the  court  was 
requested  so  to  instruct  the  jury.  This  the  court  declined  doing,  but 
instructed  the  jury  that  the  indictment  did  describe  a  confederacy 
among  the  defendants  to  do  an  unlawful  act,  and  to  effect  the  same  by 
unlawful  means  —  that  the  society,  organized  and  associated  for  the 
purposes  described  in  the  indictment,  was  an  unlawful  conspiracy 
against  the  laws  of  this  State,  and  that  if  the  jury  believed,  from  the 
evidence,  that  the  defendants  or  any  of  them  had  engaged  in  such  con- 
federacy, they  were  bound  to  find  such  of  them  guilty. 

In  this  opinion  of  the  learned  judge,  this  court,  for  the  reasons 
stated,  cannot  concur.  Whatever  illegal  purpose  can  bo  found  in  the 
constitution  of  th(!  Bootmakers'  Society,  it  not  being  ck^uly  sot  forth 
in  the  indictment,  cannot  be  relied  upon  to  support  this  conviction. 
So  if  any  facts  were  disclosed  at  the  trial,  which,  if  properly  averred, 
would  have  given  a  different  character  to  the  indictment,  they  do  not 
appear  in  the  1)111  of  (>xc(>ptions,  nor  could  thoy,  after  vordiot,  aid  the 
indictment.  But  looking  solely  at  the  indictment,  disregarding  the 
qualifying  epithets,  recitals  and  immaterial  allegations,  and  confining 
ourselves  to  facts  so  averred  as  to  be  capable  of  being  traversed  and 
put  in  issue,  wo  cannot  perceive  that  it  charges  a  criminal  conspiracy 


SECT.  IV]  PERMANENT   LABOR   COMBINATIONS  HI 

punishable  by  law.   The  exceptioihs  must,  then-fore,  be  sustained,  and 
the  ju(lfi;nient  arrested. 

Several  other  e.xceptions  were  taken  and  iiave  been  argued;  but  this 
decision  on  the  main  question  has  rendered  it  unnecessary  to  consider 
them.^ 

I  For  other  early  American  cases,  see  Commonwealth  v.  Carli.slo,  Briphtly 
N.  P.  (Pa.),  :i<>;  People  v.  Trcquier,  1  \Vht;el<T  Cr.  ( 'u-s.  (N.  Y.),  142;  Peopk-  v. 
Fisher,  14  WiinlcU  (X.  Y.),  '.>.  Si-e  also  iiilerestiii>;  ca-ses  collected  in  Comujonu 
&  Ciilmore,  Documentary  History,  vols.  3  and  4.  —  Ed. 


'>r 


CHAPTER  III 

FEDERAL  JURISDICTION  OVER  LABOR  DISPUTES. 

INTERFERENCE    WITH    INTERSTATE    COMMERCE 

OR  WITH  UNITED  STATES  MAILS 

SHERMAN  ANTI-TRUST  ACT 

Act  of  July  2,  1890,  c.  647,  Sections  1,  2,  7  ^ 

Sec.  1.  Every  contract,  combination  in  the  form  of  trust  or  other- 
wise, or  conspiracy,  in  restraint  of  trade  or  commerce  among  the 
several  States,  or  with  foreign  nations,  is  hereby  declared  to  be  illegal. 
Every  person  who  shall  make  any  such  contract  or  engage  in  any  such 
combination  or  conspiracy,  shall  be  deemed  guilty  of  a  misdemeanor, 
and,  on  conviction  thereof,  shall  be  punished  by  fine  not  exceeding 
five  thousand  dollars,  or  by  imprisonment  not  exceeding  one  year,  or 
by  both  said  punishments,  in  the  discretion  of  the  court. 

Sec.  2.  Every  person  who  shall  monopolize,  or  attempt  to  monop- 
ohze,  or  combine  or  conspire  with  any  other  person  or  persons,  to 
monopolize  any  part  of  the  trade  or  commerce  among  the  several 
States,  or  with  foreign  nations,  shall  be  deemed  guilty  of  a  mis- 
demeanor, and,  on  conviction  thereof,  shall  be  punished  by  fine  not 
exceeding  five  thousand  dollars,  or  by  imprisonment  not  exceeding 
one  year,  or  by  both  said  punishments,  in  the  discretion  of  the  court. 

Sec.  7.  Any  person  who  shall  be  injured  in  his  business  or  property 
by  any  other  person  or  corporation  by  reason  of  anything  forbidden 
or  declared  to  be  unlawful  by  this  act,  may  sue  therefor  in  any  Circuit 
Court  of  the  United  States  in  the  district  in  which  the  defendant 
resides  or  is  found,  without  respect  to  the  amount  in  controversy,  and 
shall  recover  threefold  the  damages  by  him  sustained,  and  the  costs 
of  suit,  including  a  reasonable  attorney's  fee. 

UNITED  STATES  v.  E.  C.  KNIGHT  COMPANY 

Supreme  Court  of  the  United  States.     1895 

156  U.  S.  1 

.  .  .  The  material  facts  proved  are  that  the  American  Sugar  Refining 

Co.,  one  of  the  defendants,  is  incorporated  under  the  laws  of  New 

Jersey,  and  has  authority  to  purchase,  refine,  and  sell  sugar;  that  the 

Franklin  Sugar  Refinery,  th(>  E.  C.  Knight  Co.,  the  Spreckels  Sugar 

Refinery,  and  the  Delaware  Sugar  House,  wer(>  incorporated  under  the 

•  U.  S.  Comp.  Stats.,  sees.  8820,  8821,  8829. 


CHAP.  Ill]  FEDER.U.   JURISDICTION  113 

laws  of  Peniisylvaniu,  and  authorized  to  purcha,sc,  refine,  antl  imU 
sugar;  that  the  four  hitter  Pennsylvania  conifjanies  were  located  in 
Philiidelpliiii,  tiiid  prior  to  March,  1H92,  pnjduced  jilxjut  '.i'.i  jx-r  cent 
of  the  total  amoinit  of  su^ar  refiii('(l  in  the  I'nited  States,  and  were  in 
active  competition  with  the  American  Sugar  Refining  ('o.,  and  with 
each  other,  selling  their  product  wherever  demand  was  found  f(jr  it 
throughout  the  Tnited  States;  that  prior  to  March,  1S92,  the  Ameri- 
can Sugar  Refilling  Co.  ha<l  obtained  control  of  all  refineries  in  the 
United  States,  excerpting  the  four  located  in  IMiiladelphia,  and  that  of 
the  Revere  Co.  in  Boston,  the  latter  producing  about  2  jx'r  cent  of  the 
amount  refined  in  this  country;  that  in  March,  1S02,  the  American 
Sugar  Refining  ( 'o.  entered  into  contracts  (on  different  dates)  with  the 
stockhcjlders  of  each  of  the  Philadelphia  corporations  named,  whereby 
it  purchased  their  stock,  paying  therefor  by  transfers  of  stock  in  its 
company;  that  the  American  Sugar  Refining  Co.  thus  obtained  pos- 
session of  the  Philadelphia  refineries  and  their  business;  that  each  of 
the  purchases  was  made  subject  to  the  American  Sugar  Refining  Co. 
obtaining  authority  to  increase  its  stock  S25,(XK),0{M);  that  this  assent 
was  subsequently  obtained  and  the  increase  made;  that  there  was  no 
understanding  or  concert  of  action  between  the  stockholders  of  the 
several  Philadelphia  companies  respecting  the  sales,  but  that  those  of 
each  company  acted  indeix'ndently  of  those  of  the  otfiers,  and  in 
ignorance  of  what  was  being  done  by  such  others;  that  the  stock- 
holders of  each  company  acted  in  concert  with  each  other,  under- 
stantling  and  intending  that  all  the  stock  and  property  of  the  company 
should  be  sold;  that  the  contract  of  sale  in  each  instance  left  the  sell- 
ers free  to  establish  other  refineries  and  continue  the  business  if  they 
should  see  fit  to  do  so,  and  contained  no  provision  respecting  trade  or 
conunerce  in  sugar,  and  that  no  arrangemcMit  or  provision  on  this  sub- 
ject has  been  made  since;  that  sinc(>  the  purchase  the  Delaware  Sugar 
House  Refinery  has  l)een  operated  in  conjunction  with  the  Spreckels 
Refinery,  and  the  E.  C.  Knight  Refinery  in  connection  with  the 
Franklin,  this  combination  l)eing  made  apparently  for  reasons  of 
economy  in  conducting  the  business;  that  the  amount  of  sugar  refined 
in  Philadelphia  has  l)een  increased  since  the  purchases;  that  the  price 
has  been  slightly  advanced  since  that  event,  but  is  still  lower  than  it 
had  been  for  some  years  before,  and  up  to  within  a  few  months  of 
the  sales;  that  about  10  per  cent  of  the  sugar  refined  and  sokl  in  the 
United  Stat(>s  is  i-efini^l  in  other  r(>fin(M-ies  than  those  controlled  by  the 
American  Sugar  Refining  Co.;  that  some  additional  sugar  is  produced 
in  Louisiana  and  some  is  brought  from  Europe,  but  the  amount  is  not 
large  in  either  instance. 

The  object  in  purchasing  the  Phihulelphia  refineries  was  to  obtain 
a  gnviter  influence  or  more  perfect  control  over  the  business  of  refining 
and  selling  sugar  in  this  country.' 

'  The  farts  arc  fiivon  a.s  summarized  hy  Judge  Butler  in  hi.s  opinion  in  the 
Circuit  Court.  —  Ed. 


t^ 


t^L 


114  FEDERAL    JURISDICTION  [CHAP.  Ill 

The  Circuit  Court  held  that  the  facts  did  not  show  a  contract,  com- 
bination, or  conspiracy  to  restrain  or  monopoKze  trade  or  commerce 
"among  the  several  States  or  with  foreign  nations,"  and  dismissed  the 
bill.  60  Fed.  Rep.  306.  The  cause  was  taken  to  the  Circuit  Court  of 
Appeals  for  the  Third  Circuit,  and  the  decree  affirmed.  60  Fed.  Rep. 
934.    This  appeal  was  then  prosecuted.  .  .  . 

Mr.  Chief  Justice  Fuller,  after  stating  the  case,  deUvered  the 
opinion  of  the  court. 

By  the  purchase  of  the  stock  of  the  four  Philadelphia  refineries, 
with  shares  of  its  own  stock,  the  American  Sugar  Refining  Co.  ac- 
quired nearly  complete  control  of  the  manufacture  of  refined  sugar 
within  the  United  States.  The  bill  charged  that  the  contracts  under 
which  these  purchases  were  made  constituted  combinations  in  re- 
straint of  trade,  and  that  in  entering  into  them  the  defendants  com- 
bined and  conspired  to  restrain  the  trade  and  commerce  in  refined 
sugar  among  the  several  States  and  with  foreign  nations,  contrary  to 
the  act  of  Congress  of  July  2,  1890. 

The  relief  sought  was  the  cancellation  of  the  agreements  under 
which  the  stock  was  transferred;  the  redelivery  of  the  stock  to  the 
parties  respectively;  and  an  injunction  against  the  further  perform- 
ance of  the  agreements  and  further  violations  of  the  act.  .  .  . 

The  fundamental  question  is,  whether  conceding  that  the  existence 
of  a  monopoly  in  manufacture  is  established  by  the  evidence,  that 
monopoly  can  be  directly  suppressed  under  the  act  of  Congress  in  the 
mode  attempted  by  this  bill. 

It  cannot  be  denied  that  the  power  of  a  State  to  protect  the  lives, 
health,  and  property  of  its  citizens,  and  to  preserve  good  order  and  the 
public  morals,  "the  power  to  govern  men  and  things  within  the  limits 
of  its  dominion,"  is  a  power  originally  and  always  belonging  to  the 
States,  not  surrendered  by  them  to  the  general  government,  nor 
directly  restrained  by  the  Constitution  of  the  United  States,  and  es- 
sentially exclusive.  The  relief  of  the  citizens  of  each  State  from  the 
burden  of  monopoly  and  the  evils  resulting  from  the  restraint  of  trade 
among  such  citizens  was  left  with  the  States  to  deal  with,  and  this 
court  has  recognized  their  possession  of  that  power  even  to  the  extent 
of  holding  that  an  employment  or  business  carried  on  by  private  in- 
dividuals, when  it  becomes  a  matter  of  such  public  interest  and  im- 
portance as  to  create  a  common  charge  or  burden  upon  the  citizen;  in 
other  words,  when  it  becomes  a  practical  monopoly,  to  which  the 
citizen  is  compelled  to  resort  and  by  means  of  which  a  tribute  can  be 
exacted  from  the  community,  is  subject  to  regulation  by  state  legisla- 
tive power.  On  the  other  hand,  the  power  of  ('ongress  to  regulate 
commerce  among  the  several  States  is  also  exclusive.  The  (Constitu- 
tion do(!S  not  provide  that  interstate  commerce  shall  be  free,  but,  ])y 
the  grant  of  this  exclusive  power  to  regulate  it,  it  was  left  free  except 
as  Congress  might  impose  restraints.    Therefore  it  has  been  deter- 


CHAP.  Ill]  FEDEUAL   JLKISDICTION  115 

mined  that  the  faihiic  of  ( '(juj^n-ss  to  exercise  tliis  exclu-sive  jKuver  in 
any  case  is  an  expression  of  its  will  that  the  subject  shall  Ix?  free  from 
restrictions  or  impositions  upon  it  hy  the  sevenil  States,  and  if  a  law 
passed  by  a  State  in  the  exercise  of  its  acknowled^jed  jMnvers  c(jmes 
into  conflict  with  that  will,  the  Connress  and  the  Stat<'  cannot  occupy 
the  position  of  equal  opposing?  sovereij^nties,  because  tlie  Constitution 
declares  its  supremacy  and  that  of  the  laws  pass<Hl  in  pursuance; 
thereof;  and  that  which  is  not  supreme  must  yield  to  that  which  is 
supreme.  "Commerce,  undoubtedly,  is  traflic,"  said  ("iiief  .Justice 
Marshall,  "but  it  is  somethinjj;  more;  it  is  intercourse.  It  descrilx's 
the  conunercial  intercourse  between  nations  and  parts  of  nations  in  all 
its  branches,  and  is  re^ulatx^d  by  prescribing  rules  for  carrying  on  that 
intercourse."  That  which  beloiif^s  to  commerce  is  within  the  jurisdic- 
tion of  the  United  States,  but  that  which  does  not  belong  to  conunerce 
is  within  the  jurisdiction  of  the  police  power  of  the  State.  Giblx)ns  v. 
Ogden,  9  Wheat,  1,  189,  210;  Brown  v.  Mar>'land,  12  Wheat.  419, 
448;  The  License  Cases,  5  How.  504,  .599;  Mobile  v.  Kimball,  102 
U.  S.  ()91;    Bowman  v.  Chicago  <fc  N.  W.  Railway,  125  U.  S.  4G5;  .    ^  i 

Leisy  v.  Hardin,  135  V.  S.  100;  In  re  Rahrer,  140  U.  S.  545,  555.  U--*^ 

The  argument  is  that  the  power  to  control  the  manufacture  of  re-  . 
fined  sugar  is  a  monopoly  over  a  necessary  of  life,  to  the  enjoyment  of 
wiiich  i)y  a  large  part  of  the  population  of  the  United  States  intei-statc 
conmierce  is  indispensable,  and  that,  therefore,  the  general  govern- 
ment in  the  exercise  of  the  power  to  regulate  commerce  may  repress 
such  monopoly  directly  and-  set  aside  the  instruments  which  have 
created  it.  But  this  argument  cannot  be  confined  to  neccs.saries  of  life 
merely,  and  nuist  include  all  articles  of  general  consumption.  Doul)t- 
less  the  power  to  control  the  manufacture  of  a  given  thing  involves  in 
a  certain  sense  the  control  of  its  disposition,  but  this  is  a  secondary  and 
not  the  primary  sense;  and  although  the  exercise  of  that  power  may 
result  in  bringing  the  operation  of  commerce  into  jilay,  it  does  not 
centrol  it,  antl  allects  it  onl}'  incitlentally  and  indirectly.  Commerce 
succeeds  to  manufacture,  and  is  not  a  part  of  it.  The  power  to  regu- 
late commerce  is  the  power  to  prescribe  the  rule  by  which  commerce 
shall  be  governed,  and  is  a  power  independent  of  the  {xiwer  to  sup- 
press monopoly.  But  it  ma}-  operate  in  repression  of  monopoly  wIkmi- 
ever  that  comes  within  the  rules  by  which  commerce  is  governed  or 
whenever  the  transaction  is  itself  a  monopoly  of  commerce.  .  .  . 

In  Kidd  v.  Pearson,  128  U.  S.  1,  20,  21,  22,  .  .  .  Mr.  Justice  La- 
mar remarked:  "No  distinction  is  more  popular  to  the  common 
mind,  or  more  clearly  expressed  in  economic  and  political  literature, 
than  that  between  manufacture  and  conunerce.  Manufacture  is 
transformation  —  the  fa.shioning  of  raw  materials  into  a  change  of 
form  for  use.  The  functions  of  conunerce  are  difT(>rent.  The  buying 
aiul  selling  and  the  transportation  incidental  thereto  constitute  com- 
merce; and  the  regulation  of  commerce  in  \\\v  constitutional  sense 
embraces  the  regulation  at  least  of  such  transportation.   .   .   .    If  it  l>e 


116  FEDERAL   JURISDICTION  [CHAP.  Ill 

held  that  the  term  includes  the  regulation  of  all  such  manufactures  as 
are  intended  to  be  the  subject  of  commercial  transactions  in  the  future, 
it  is  impossible  to  deny  that  it  would  also  include  all  productive  in- 
dustries that  contemplate  the  same  thing.  The  result  would  be  that 
Congress  would  be  invested,  to  the  exclusion  of  the  States,  with  the 
power  to  regulate,  not  only  manufactures,  but  also  agriculture,  horti- 
culture, stock  raising,  domestic  fisheries,  mining  —  in  short,  every 
branch  of  human  industry.  For  is  there  one  of  them  that  does  not 
contemplate,  more  or  less  clearly,  an  interstate  or  foreign  market? 
Does  not  the  wheat  grower  of  the  Northwest  or  the  cotton  planter  of 
the  South,  plant,  cultivate,  and  harvest  his  crop  with  an  eye  on  the 
prices  at  Liverpool,  New  York,  and  Chicago?  The  power  being  vested 
in  Congress  and  denied  to  the  States,  it  would  follow  as  an  inevitable 
result  that  the  duty  would  devolve  on  Congress  to  regulate  all  of  these 
delicate,  multiform  and  vital  interests  —  interests  which  in  their 
nature  are  and  must  be  local  in  all  the  details  of  their  successful  man- 
agement. .  .  .  The  demands  of  such  a  supervision  would  require,  not 
uniform  legislation  generally  applicable  throughout  the  United 
States,  but  a  swarm  of  statutes  only  locally  applicable  and  utterly  in- 
consistent. Any  movement  toward  the  establishment  of  rules  of  pro- 
duction in  this  vast  country,  with  its  many  different  climates  and  op- 
portunities, could  only  be  at  the  sacrifice  of  the  peculiar  advantages  of 
a  large  part  of  the  localities  in  it,  if  not  of  every  one  of  them.  On  the 
other  hand,  any  movement  toward  the  local,  detailed  and  incongruous 
legislation  required  by  such  interpretation  would  be  about  the  widest 
possible  depart m-e  from  the  declared  object  of  the  clause  in  question. 
Nor  this  alone.  Even  in  the  exercise  of  the  power  contended  for,  Con- 
gress would  be  confined  to  the  regulation,  not  of  certain  branches  of 
industry,  however  numerous,  but  to  those  instances  in  each  and  every 
branch  where  the  producer  contemplated  an  interstate  market.  These 
instances  would  be  almost  infinite,  as  w^e  have  seen;  but  still  there 
would  always  remain  the  possibility,  and  often  it  would  be  the  case, 
that  the  producer  contemplated  a  domestic  market.  In  that  case  the 
supervisory  power  must  be  executed  by  the  State;  and  the  inter- 
minable trouble  would  be  presented,  that  whether  the  one  power  or 
the  other  should  exercise  the  authority  in  question  would  be  deter- 
mined, not  by  any  general  or  intelligible  rule,  but  by  the  secret  and 
changeable  intention  of  the  producer  in  each  and  every  act  of  produc- 
tion. A  situation  more  paralyzing  to  the  state  governments,  and  more 
provocative  of  conflicts  between  the  general  government  and  the 
States,  and  less  likely  to  have  been  what  the  framers  of  the  Constitu- 
tion intended,  it  would  be  difficult  to  imagine."  And  sec  Veazie  v. 
Moor,  14  How.  508,  574. 

In  (jlibbons  v.  Ogden,  Brown  v.  Maryland,  and  other  cases  often 
cited,  the  state  laws,  which  were  held  inoperative,  were  instances  of 
dir(K;t  interference  with,  or  regulations  of,  interstate  or  international 
commerce;   yet  in  Kidd  v.  Pi^arson  the  refusal  of  a  State  to  allow 


CHAP.  Ill]  FEDERAL   JURISDICTION  117 

articles  to  be  manufactured  within  her  l^orders  even  for  export  \va.s 
held  not  to  directly  affect  external  commerce,  and  state  legislation 
which,  in  a  great  variety  of  ways,  affected  interstate  comniercc  and 
|X!rsonH  engaged  in  it,  has  been  frecjuently  sustained  because  the  int<'r- 
ference  was  not  direct. 

Contracts,  combinations,  or  conspiracies  to  control  domestic  enter- 
prise in  manufacture,  agriculture,  mining,  production  in  all  its  forms, 
or  to  raise  or  lower  prices  or  wages,  might  uiuiuestionably  tend  t(j  re- 
strain external  as  well  as  domestic  trade,  but  the  restraint  would  Im'  an 
indirect  result,  however  inevitable  and  whatever  its  extent,  and  such 
result  would  not  necessarily  determine  the  f)bject  of  the  cf)ntract, 
combination,  or  conspiracy. 

Again,  all  th(>  authorities  agice  tluit  in  order  to  vitiate  a  contract 
or  combination  it  is  not  essential  that  its  result  should  be  a  complete 
monopoly;  it  is  sufficient  if  it  really  tends  to  that  end  and  to  deprive 
the  public  of  the  advantages  which  flow  from  free  competition.  Slight 
reflection  will  show  that  if  the  national  power  extends  to  all  contracts 
and  c()mi)inations  in  manufacture,  agriculture,  mining,  and  other 
productive  industries,  whose  ultimate  result  may  affect  external  com- 
merce, comparatively  little  of  business  operations  and  affairs  would 
be  left  for  state  control. 

It  was  in  the  light  of  well-settled  principles  that  the  act  of  July  2, 
1890,  was  framed.  Congn^ss  did  not  attempt  thereby  to  assert  the 
power  to  deal  with  monopoly  directly  as  such;  or  to  limit  and  restrict 
the  rights  of  corporations  created  by  the  States  or  the  citizens  of  the 
States  in  the  acquisition,  control,  or  disposition  of  property;  or  to 
regulate  or  prescrilx^  the  price  or  prices  at  wiiich  such  property  or  the 
products  thereof  should  be  sold;  or  to  make  criminal  the  acts  of  per- 
sons in  the  acquisition  and  control  of  property  which  the  States  of  r  /  /  ^ 
their  residence  or  creation  sanctioned  or  permittc^d.  Aside  from  the  ^^ 
provisions  applicable  wh(n-e  ('ongn>ss  might  exercise  municipal  power, 
what  the  law  struck  at  was  combinations,  contracts,  and  conspiracies 
to  monopolize  trade  and  commerce  among  the  several  States  or  with 
foreign  nations;  but  the  contracts  and  acts  of  the  defendants  related 
exclusively  to  the  acquisition  of  the  Philadelphia  refineric^s  and  the 
business  of  sugar  refining  in  Pennsylvania,  and  bore  no  direct  relation 
to  commerce  between  the  States  or  with  foreign  nations.  The  object 
was  manifestly  private  gain  in  the  manufacture  of  the  commodity,  but 
not  through  th(^  control  of  interstate  or  foreign  commerce.  It  is  true 
that  the  bill  alleged  tiiat  the  products  of  these  refineries  were  soUl  and 
distriinited  among  the  several  States,  and  that  all  the  companies  were 
engaged  in  trade  or  conmierce  with  the  several  States  and  with  foreign 
nations;  but  this  was  no  more  than  to  say  that  trade  and  conunerce 
served  manufacture  to  fulfil  its  function.  Sugar  wa.-^  refininl  for  sale, 
and  sales  were  probably  made  at  Philadelphia  for  consumption,  and 
undoubtedly  for  resale  by  the  first  purchasers  throughout  Pennsyl- 
vania and  other  States,  and  refinc^d  sutrar  was  also  forwarded  bv  the 


118  FEDERAL  JURISDICTION  [CHAP.  Ill 

companies  to  other  States  for  sale.  Nevertheless  it  does  not  follow 
that  an  attempt  to  monopolize,  or  the  actual  monopoly  of,  the  manu- 
factm-e  was  an  attempt,  whether  executory  or  consummated,  to 
monopolize  commerce,  even  though,  in  order  to  dispose  of  the  product, 
the  instrumentahty  of  commerce  was  necessarily  invoked.  There  was 
nothing  in  the  proofs  to  indicate  any  intention  to  put  a  restraint  upon 
trade  or  conmaerce,  and  the  fact,  as  we  have  seen,  that  trade  or  com- 
merce might  be  indirectly  affected  was  not  enough  to  entitle  com- 
plainants to  a  decree.  The  subject-matter  of  the  sale  was  shares  of 
manufacturing  stock,  and  the  relief  sought  was  the  surrender  of  prop- 
erty which  had  already  passed  and  the  suppression  of  the  alleged 
monopoly  in  manufacture  by  the  restoration  of  the  status  quo  before 
the  transfers;  yet  the  act  of  Congress  only  authorized  the  Circuit 
Courts  to  proceed  by  way  of  preventing  and  restraining  violations  of 
the  act  in  respect  of  contracts,  combinations,  or  conspiracies  in  re- 
straint of  interstate  or  international  trade  or  commerce. 

The  Circuit  Court  declined,  upon  the  pleadings  and  proofs,  to  grant 
the  relief  pra^-cd,  and  dismissed  the  bill,  and  we  are  of  opinion  that  the 
Circuit  Court  of  Appeals  did  not  err  in  affirming  that  decree. 

Decree  affirmed. 

Mr.  Justice  Harlan,  dissenting.^ 


SWIFT  AND  COMPANY  v.  UNITED  STATES 

Supreme  Court  of  the  United  States.     1905 

196  U.  S.  375 

Mr.  Justice  Holmes  delivered  the  opinion  of  the  court. 

This  is  an  appeal  from  a  decree  of  the  Circuit  Court,  on  demurrer, 
granting  an  injunction  against  the  appellants'  commission  of  alleged 
violations  of  the  act  of  July  2,  1890,  c.  647,  26  Stat.  209,  "to  protect 
trade  and  commerce  against  unlawful  restraints  and  monopolies." 
It  will  be  necessary  to  consider  both  the  bill  and  the  decree.  The 
bill  is  brought  against  a  number  of  corporations,  firms  and  individ- 
uals of  different  States  and  makes  the  following  allegations:  1.  The 
defendants  (appellants)  are  engaged  in  the  business  of  buying  live 
stock  at  the  stock  yards  in  Chicago,  Omaha,  St.  Joseph,  Kansas 
City,  East  St.  Louis  and  St.  Paul,  and  slaughtering  such  live  stock 
at  their  respective  plants  in  places  named,  in  different  States,  and 
converting  the  live  stock  into  fresh  meat  for  human  consumption. 
2.  The  defendants  "are  also  engaged  in  the  business  of  selling  such 
fresh  meats,  at  the  several  places  where  they  are  so  prepared,  to 
dealers  and  consumers  in  divers  States  and  Territories  of  the  said 
United  States  other  than  those  wherein  the  said  m(>ats  are  so  pre- 
pared and  sold  as  aforesaid,  and  in  the  District  of  Columbia,  and  in 
foreign  countries,  and  shipping  the  same  meats,  when  so  sold  from 
1  The  dissenting  opinion  of  Harlan,  J.,  is  omitted.  —  Ed. 


CHAP.   HI]  FEDERAL   JLUISDICTION  119 

the  said  j^lacos  of  tlicir  preparation,  over  tho  sovoral  lines  of  trans- 
portation of  the  several  railroad  companies  .sorvinK  the  .same  a.s  com- 
mon carriers,  to  such  dcuilers  and  consumers,  pin;suant  to  such  sales." 
3.  Th(^  defendants  also  are  en^aKcd  in  the  husiness  of  shipping  such 
fresh  m(?ats  to  their  respective  agents  at  the  principal  mark<'ts  in 
other  iStates,  etc.,  for  sale  hy  those  agents  in  tho.se  markets  t<j  dealers 
and  con.sumers.  4.  The  defendants  totieth(>r  control  alxiut  .six- 
tenths  of  th(^  whole  trad(>  and  commerce  in  fresh  meats  anions  the 
Stat(^s,  Territories  and  District  of  ("olumhia,  and,  5,  hut  for  the  acts 
charged  would  l)e  in  free  wmpotiticm  with  one  another. 

6.  In  order  to  restrain  competition  among  them.selves  as  to  the 
purchti.se  of  live  stock,  defendants  have  engaged  in,  and  intend  to  con- 
tinue, a  combination  for  I'cfjuiring  and  do  and  will  n'(iuire  their  respec- 
tive purchasing  agents  at  the  stock  yards  mentioned,  where  defendants 
buy  their  live  stock  (the  same  being  stock  produced  and  owned  prin- 
cipally in  other  States  and  shipped  to  the  yards  for  sale),  to  refrain 
from  l)iddiiig  against  each  other,  "excei)t  perfunctorily  and  without 
good  faith,''  and  l)y  this  means  compelling  the  owners  of  such  stock  to 
8(^11  at  less  prices  than  they  would  receive  if  the  bidding  reall>'  w;us 
competitive. 

7.  For  the  same  purposes  the  defendants  combine  to  bid  up, 
through  their  agents,  the  jjrices  of  live  stock  fcjr  a  few  days  at  a  time, 
"so  that  the  market  reports  will  show  prices  much  higher  than  the 
state  of  the  trade  will  warrant,"  thereby  inducing  stock  owners  in 
other  States  to  make  large  shipments  to  the  stock  yards  to  their  dis- 
advantage. 

8.  For  the  same  purposes,  and  to  monopolize  the  commerce  pro- 
tected by  the  statute,  the  defendants  combine  "to  arbitrarily,  from 
time  to  time  raise,  lower,  and  fix  prices,  and  to  maintain  uniform  prices 
at  which  they  will  sell"  to  dealers  throughout  the  States.  This  is 
effected  i)y  secret  jicriodical  meetings,  where  are  fixed  prices  to  l>e  en- 
forced until  changed  at  a  subsequent  meeting.  The  prices  arc  main- 
tained directly,  and  by  coUusively  restricting  the  meat  shipped  by  the 
defendants,  whenever  conducive  to  the  result,  by  imposing  penalties 
for  deviations,  l)v  esta])lishing  a  uniform  rule  for  the  giving  of  credit 
to  dealers,  etc.,  and  l)y  notifying  one  another  of  th(^  delin(}uencies  of 
such  dealers  and  keeping  a  black  list  of  delincjuents,  and  refusing  to 
sell  meats  to  them. 

9.  The  defendants  also  combine  to  make  uniform  charges  for  cart- 
age for  the  delivery  of  meats  sold  to  dealcM's  and  consumers  in  the  mar- 
kets throughout  the  States,  etc.,  .shipped  to  them  by  the  defendants 
through  the  defendants'  agents  at  the  markets,  when  no  charges  would 
have  been  made  but  for  the  combination. 

10.  Intending  to  monopolize  the  said  commerce  and  to  prevent 
competition  th(M-ein,  the  defendants  "have  all  and  ciirh  engaged  in 
and  will  continue"  arrangements  with  the  railroads  whereby  the  de- 
fiMidants  reccnved,  bv  means  of  rebates  and  other  devices,  rates  less 


120 


FEDERAL   JURISDICTION 


[CHAP.  Ill 


than  the  lawful  rates  for  transportation,  and  were  exclusively  to  en- 
joy and  share  this  unlawful  advantage  to  the  exclusion  of  competition 
and  the  public.  By  force  of  the  consequent  inability  of  competitors  to 
engage  or  continue  fn  such  commerce,  the  defendants  are  attempting 
to  monopolize,  have  monopolized,  and  will  monopolize  the  commerce 
in  live  stock  and  fresh  meats  among  the  States  and  Territories,  and 
with  foreign  countries,  and,  11,  the  defendants  are  and  have  been  in 
conspiracy  with  each  other,  with  the  railroad  companies  and  others 
unknown,  to  obtain  a  monopoly  of  the  supply  and  distribution  of  fresh 
meats  throughout  the  United  States,  etc.  And  to  that  end  defendants 
artificially  restrain  the  commerce  and  put  arbitrary  regulations  in 
force  affecting  the  same  from  the  shipment  of  the  live  stock  from  the 
plains  to  the  final  distribution  of  the  meats  to  the  consumers.  There 
is  a  prayer  for  an  injunction  of  the  most  comprehensive  sort,  against 
all  the  foregoing  proceedings  and  others,  for  discovery  of  books  and 
papers  relating  directly  or  indirectly  to  the  purchase  or  shipment  of 
live  stock,  and  the  sale  or  shipment  of  fresh  meat,  and  for  an  answer 
under  oath.  .  .  . 

To  sum  up  the  bill  more  shortly,  it  charges  a  combination  of  a 
dominant  proportion  of  the  dealers  in  fresh  meat  throughout  the 
United  States  not  to  bid  against  each  other  in  the  live  stock  markets 
of  the  different  States,  to  bid  up  prices  for  a  few  days  in  order  to  in- 
duce the  cattle  men  to  send  their  stock  to  the  stock  yards,  to  fix  prices 
at  which  they  wiU  sell,  and  to  that  end  to  restrict  shipments  of  meat 
when  necessary,  to  establish  a  uniform  rule  of  credit  to  dealers  and  to 
keep  a  black  list,  to  make  uniform  and  mproper  charges  for  cartage, 
and  finally,  to  get  less  than  lawful  rates  from  the  railroads  to  the  ex- 
clusion of  competitors.  .  .  . 

Although  the  combination  alleged  embraces  restraint  and  monopoly 
of  trade  within  a  single  State,  its  effect  upon  commerce  among  the 
States  is  not  accidental,  secondary,  remote  or  merely  probable.  On 
the  allegations  of  the  bill  the  latter  commerce  no  less,  perhaps  even 
more,  than  commerce  within  a  single  State  is  an  object  of  attack.  See 
Leloup  V.  Port  of  Mobile,  127  U.  S.  640,  647;  Crutcher  v.  Kentucky, 
141  U.  S.  47,  59;  Allen  v.  Pullman  Co.,  191  U.  S.  171,  179,  180. 
Moreover,  it  is  a  direct  object,  it  is  that  for  the  sake  of  which  the 
several  specific  acts  and  courses  of  conduct  are  done  and  adopted. 
Therefore  the  case  is  not  like  United  States  v.  E.  C.  Knight  Co., 
156  U.  S.  1,  where  the  subject  matter  of  the  combination  was  manu- 
facture and  the  direct  object  monopoly  of  manufacture  within  a 
State. "  However  likely  monopoly  of  commerce  among  the  States  in 
the  article  manufactured  was  to  follow  from  the  agreement  it  was  not 
a  necessary  consequence  nor  a  primary  end.  Here  the  subject  matter 
is  sales  and  the  very  point  of  the  combination  is  to  restrain  and 
monopolize  commerce  among  the  States  in  respect  of  such  sales.  The 
two  cases  are  near  to  each  other,  as  sooner  or  later  always  must  hap- 


CHAP.  Ill]  FEDERAL    JURISDICTION  121 

pen  where  lines  are  to  be  drawn,  but  the  line  between  thcni  is  distinct. 
Montague  &  Co.  i'.  Lowry,  193  U.  S.  38.  .  .  . 

For  the  forogoinp;  roa.'^ons  we  are  of  opinion  that  the  carrying  out  of 
the  schenic  allc{ic<l.  l)y  the  means  set  forth,  proix-rly  may  be  enjoined, 
and  that  the  bill  cannot  be  (hsinissed.'  ...  '  , 

LOEWE  V.  LAWLOR 

Supreme  Court  ok  tiik  I'mted  States.     1908 

208  V.  S.  274 

Mr.  Chief  Jistke  Fcllkk  delivered  tlie  opinion  of  the  court. 

This  was  an  action  brou{i;lit  in  tiie  Circuit  Court  for  the  District  of 
Connecticut  under  sec.  7  of  the  Anti-Trust  Act  of  July  2,  1S9(),  c.  b47, 
26  Stat.  209,  claiming  threefold  damages  for  injuries  inflicted  on 
plaintiffs  by  a  combination  or  conspiracy  declared  to  be  unlawful  by 
the  act. 

Defendants  filed  a  demurrer  to  the  complaint,  a.ssigning  general  and 
special  grounds.   .   .   . 

The  case  comers  up,  tJien,  on  complaint  and  tlemurrer.  .  .  . 

The  question  is  whether  upon  the  facts  averred  [in  the  complaint] 
and  admitted  by  the  denuirrer  this  action  can  be  maintained  under 
the  Anti-Trust  Act.  .   .  . 

In  our  opinion,  the  coml)ination  described  in  the  declaration  is  a 
combination  "in  restraint  of  trade  or  commerce  among  the  several 
States,"  in  the  sense  in  which  those  words  are  used  in  the  act,  and  the 
action  can  \)o  maintained  accordingly. 

And  that  conclusion  rests  on  many  jutlgments  of  tiiis  court,  to  the 
effect  that  the  act  prohibits  any  combination  whatever  to  secure  ac- 
tion which  essentially  o])structs  the  free  flow  of  commerce  between  the 
States,  or  r(>stricts,  in  that  regard,  the  lil)erty  of  a  trader  to  engage  in 
business. 

The  combination  charged  falls  within  the  cUiss  of  restraints  of  trade 
aimed  at  compelling  third  parties  and  strangers  involuntarily  not  to 
engage  in  the  course  of  trade  except  on  conditions  that  the  combina- 
tion imposes;  and  there  is  no  doubt  that  (to  (juote  from  the  well- 
known  work  of  Chief  Justice  Erie  on  Trade  X'nions)  "at  common 
law  every  person  has  individually,  and  the  public  also  has  collectively, 
a  right  to  require  that  the  course  of  trade  should  be  kept  free  from  un- 
reasonable obstruction."  Rut  the  objection  here  is  to  the  jurisdiction, 
because,  even  conceding  that  the  declaration  states  a  case  good  at 
common  law,  it  is  contended  that  it  does  not  state  one  within  the 
statute.  Thus,  it  is  said,  that  the  restraint  alleged  would  operate  to 
entirely  destroy  plaintiffs'  business  and  thereby  include  intrastate 
trade  as  well;    that  physical  obstruction  is  not  alleged  as  contem- 

>  Compare  Hopkin.s  c.  United  States,  171  U.  S.  578.  Stv  al.^o  The  United 
Mine  Workers  r.  The  Coronado  Uoal  Co., — U.S. — ,  (deci{le<l  June  n.  1922>, 
infra,  p.  .533. 


122  FEDERAL   JURISDICTION  [CHAP.  Ill 

plated;  and  that  defendants  are  not  themselves  engaged  in  interstate 
trade. 

We  think  none  of  these  objections  are  tenable,  and  that  they  are  dis- 
posed of  by  previous  decisions  of  this  court.  .  .  . 

The  averments  here  are  that  there  was  an  existing  interstate  traffic 
between  plaintiffs  and  citizens  of  other  States,  and  that  for  the  direct 
purpose  of  destroying  such  interstate  traffic  defendants  combined  not 
merely  to  prevent  plaintiffs  from  manufacturing  articles  then  and 
there  intended  for  transportation  beyond  the  State,  but  also  to  pre- 
vent the  vendees  from  reselling  the  hats  which  they  had  imported  from 
Connecticut,  or  from  further  negotiating  with  plaintiffs  for  the  pur- 
chase and  inter-transportation  of  such  hats  from  Connecticut  to  the 
various  places  of  destination.  So  that,  although  some  of  the  means 
whereby  the  interstate  traffic  was  to  be  destroyed  were  acts  within  a 
State,  and  some  of  them  were  in  themse  ves  as  a  part  of  their  obvious 
purpose  and  effect  beyond  the  scope  of  Federal  authority,  still,  as  we 
have  seen,  the  acts  must  be  considered  as  a  whole,  and  the  plan  is  open 
to  condemnation,  notwithstanding  a  neghgible  amoimt  of  intrastate 
business  might  be  affected  in  carrying  it  out.  If  the  pmposes  of  the 
combination  were,  as  alleged,  to  prevent  any  interstate  transportation 
at  all,  the  fact  that  the  mean  operated  at  one  end  before  physical 
transportation  commenced  and  at  the  other  end  after  the  physical 
transportation  ended  was  immaterial. 

Nor  can  the  act  in  question  be  held  inapplicable  because  defendants 
were  not  themselves  engaged  in  interstate  commerce.  The  act  made 
no  distinction  between  classes.  It  provided  that  "every"  contract, 
combination  or  conspiracy  in  restraint  of  trade  was  illegal.  The  rec- 
ords of  Congress  show  that  several  efforts  were  made  to  exempt,  by 
legislation,  organizations  of  farmers  and  laborers  from  the  operation  of 
the  act  and  that  all  these  efforts  failed,  so  that  the  act  remained  as  we 
have  it  before  us. 

In  an  early  case.  United  States  v.  Workingmen's  Amalgamated 
Council,  54  Fed.  Rep.  994,  the  United  States  filed  a  bill  under  the 
Sherman  act  in  the  Circuit  Court  for  the  Eastern  District  of  Louisiana, 
averring  the  existence  of  "a  gigantic  and  widespread  combination  of 
the  members  of  a  multitude  of  separate  organizations  for  the  purpose 
of  restraining  the  commerce  among  the  several  States  and  w  ith  foreign 
countries,"  and  it  was  contended  that  the  statute  did  not  refer  to 
combinations  of  laborers.  But  the  court,  granting  the  injunction,  said: 

"I  think  the  Congressional  debates  show  that  the  statute  had  its 
origin  in  the  evils  of  massed  capital;  but,  when  the  Congress  came  to 
formulating  the  prohil)ition,  which  is  the  yardstick  for  measuring  the 
complainant's  right  to  the  injunction,  it  expressed  it  in  these  words: 
'  Every  contract  or  combination  in  the  fonn  of  trust,  or  otherwise  in 
restraint  of  trade  or  commerce  among  the  sev(Tal  States  or  with  for- 
(;ign  nations,  is  hereby  d(>clarod  to  be  illegal.'  The  subject  had  so 
broadened  in  the  minds  of  tlie  legislators  that  the  source  of  the  evil  was 


CHAF.  Ill]  FEDERAL   JURISDICTION  123 

not  regarded  as  material,  and  the  evil  in  its  entirety  is  dealt  with. 
They  made  the  interdiction  include  combinations  of  labor,  as  well  as 
of  (■af)ital;  in  fact,  all  c()nil)inations  in  restraint  of  commerce,  without 
reference  to  the  character  of  the  persons  who  ent<re(l  int<j  them.  It  is 
tru(!  this  statute  has  not  been  nmch  expounded  by  judjics,  but,  as  it 
seen)S  to  me,  its  meaning,  as  far  as  relates  to  the  sort  of  combinations 
to  which  it  is  to  apply,  is  manifest,  and  that  it  includes  combinations 
which  are  composed  of  laboreis  acting  in  the  interest  of  laborers. 

"It  is  the  successful  elTort  of  the  combination  of  the  defendants  to 
intimidate  and  overawe  others  who  were  at  work  in  conducting  or 
carrying  on  the  commerce  of  the  country,  in  which  the  court  finds  their 
error  and  their  violation  of  the  st  tute.  One  of  the  intended  results  of 
their  combined  action  was  the  forced  stagnation  of  all  the  commerce 
which  flowed  through  New  Orleans.  This  intent  and  combined  action 
are  none  the  less  unlawful  because  they  included  in  their  scope  the 
paralysis  of  all  other  business  within  the  city  as  well." 

The  cjuse  was  affirmed  on  appeal  by  the  Circuit  Court  of  Appeals  for 
the  Fifth  Circuit.     57  Fed.  Kep.  85!  .  .  . 

The  only  inquiry  is  as  to  the  sufficiency  of  the  averments  of  fact. 
We  haw  given  the  declaration  in  full  in  the  margin,  and  it  app<'ars 
therefrom  that  it  is  charged  that  defendants  formetl  a  i'oml)ination  to 
directly  restrain  plaintilTs'  trade;  that  the  trade  to  be  restrained  was 
interstate;  that  certain  means  to  attain  such  restraint  were  contrived 
to  be  used  and  employed  to  that  end;  that  those  means  were  so  used 
and  employed  by  defendants,  and  tliat  thereby  they  injured  plaintiffs' 
property  and  i)usiness. 

At  the  risk  of  tediousncss,  we  repeat  that  the  complaint  averred 
that  plaintiffs  were  manufacturers  of  hats  in  Danbury,  Connecticut, 
having  a  factory  there,  and  were  then  and  there  engaged  in  an  inter- 
state trade  in  some  twenty  States  other  than  the  State  of  Connecticut; 
that  they  were  practically  dependent  upon  such  interstate  trade  to 
consume  the  product  of  their  factory,  only  a  small  jjercentage  of  their 
entire  outj^ut  being  consumed  in  the  State  of  Connecticut;  that  at  the 
time  the  alleged  combination  was  formed  they  were  in  the  proce.'JS  of 
manufacturing  a  huge  nuniitcr  of  hats  for  the  purpose  of  fulfilling 
<'ngagements  then  actually  made  with  consignees  and  wholesale 
dealers  in  States  other  than  Connecticut,  and  that  if  prevented  from 
carrying  on  the  work  of  manufacturing  these  hats  they  would  be  un- 
able to  complete  their  engagements. 

That  defendants  w(M'e  members  of  a  vast  comlMnation  called  The 
Iriited  Hatters  of  North  America,  comprising  about  9,tHK)  members 
and  including  a  .large  number  of  subordinate  unions,  and  that  they 
were  combincnl  with  sonu^  1.-100,(K)()  oth(>rs  into  another  a.-^sociation 
known  as  Tlu>  .Vmerican  Federation  of  Labor,  of  which  they  were 
nuMubers,  whose  members  resided  in  all  the  places  in  the  several  States 
where  the  wholesale  dealers  in  hats  and  their  customers  resided  ;uid 


124  FEDERAL    JURISDICTION  [CHAP.  Ill 

did  business;  that  defendants  were  "engaged  in  a  combined  scheme 
and  effort  to  force  all  manufacturers  of  fur  hats  in  the  United  States, 
including  the  plaintiffs,  against  their  will  and  their  previous  policy  of 
cariying  on  their  business,  to  organize  their  workmen  in  the  depart- 
ments of  making  and  finishing,  in  each  of  their  factories,  into  an  or- 
ganization, to  be  part  and  parcel  of  the  said  combination  known  as 
The  United  Hatters  of  North  America,  or  as  the  defendants  and  their 
confederates  term  it,  to  unionize  their  shops,  with  the  intent  thereby 
to  control  the  emplojTnent  of  labor  in  and  the  operation  of  said  fac- 
tories, and  to  subject  the  same  to  the  direction  and  control  of  persons, 
other  than  the  owners  of  the  same,  in  a  manner  extremely  onerous  and 
distasteful  to  such  owners,  and  to  carry  out  such  scheme,  effort  and 
purpose,  by  restraining  and  destroying  the  interstate  trade  and  com- 
merce of  such  manufacturers,  by  means  of  intimidation  of  and  threats 
made  to  such  manufacturers  and  their  customers  in  the  several  States, 
of  boycotting  them,  their  product  and  their  customers,  using  therefor 
all  the  powerful  means  at  their  command,  as  aforesaid,  until  such 
time  as,  from  the  damage  and  loss  of  business  resulting  therefrom,  the 
said  manufacturers  should  yield  to  the  said  demand  to  unionize  their 
factories." 

That  the  conspiracy  or  combination  was  so  far  progressed  that  out 
of  eighty-two  manufacturers  of  this  country  engaged  in  the  production 
of  fur  hats  seventy  had  accepted  the  terms  and  acceded  to  the  demand 
that  the  shop  should  be  conducted  in  accordance,  so  far  as  conditions 
of  employment  were  concerned,  with  the  will  of  the  American  Federa- 
tion of  Labor;  that  the  local  union  demanded  of  plaintiffs  that  they 
should  unionize  their  shop  under  peril  of  being  boycotted  by  this  com- 
bination, which  demand  defendants  declined  to  comply  with;  that 
thereupon  the  American  Federation  of  Labor,  acting  through  its 
official  organ  and  through  its  organizers,  declared  a  boycott. 

The  complaint  then  thus  continued: 

"20.  On  or  about  July  25,  1902,  the  defendants  individually  and 
collectively,  and  as  members  of  said  combinations  and  associations, 
and  with  other  persons  whose  names  are  unknown  to  the  plaintiffs, 
associated  with  them,  in  pursuance  of  the  general  scheme  and  purpose 
aforesaid,  to  force  all  manufacturers  of  fur  hats,  and  particularly  the 
plaintiffs,  to  so  unionize  their  factories,  wantonly,  wrongfully,  ma- 
liciously, unlawfully  and  in  violation  of  the  provisions  of  the  *  Act  of 
Congress,  approved  July  2,  1890,'  and  entitled  '  An  Act  to  Protect 
Trade  and  Commerce  Against  Unlawful  Restraints  and  Monopolies,' 
and  with  intent  to  injure  the  property  and  ))usiness  of  the  ])laintitTs  by 
means  of  acts  done  which  are  forl^idden  and  (hu'lared  to  be  unlawful, 
by  said  act  of  Congress,  entered  into  a  combination  and  conspiracy  to 
restrain  the  plaintiffs  and  their  customers  in  States  other  than  Con- 
necticut, in  carrying  on  said  trade  and  commerce  among  the  several 
States,  and  to  wholly  prevent  tiiem  from  engaging  in  and  carrying  on 
said  trade  and  commerce  be  I  ween  them  and  to  prevent  the  plaintiff's 


CHAP.  Illj  FEDERAL   JUUISDICTION  125 

from  scUin}^  their  huts  to  wholesale  dealers  and  purchasers  in  said 
States  other  than  Connecticut,  and  to  prevent  said  dealers  and  cus- 
tomers in  said  other  States  from  huyinn  the  same,  and  to  prevent  the 
plaintiffs  from  obtaining  orders  for  tlieii-  iiuts  from  sueh  customers,  and 
filling;  the  same,  and  sliipping  said  liats  to  said  cust(jmers  in  said  States 
as  aforesaid,  and  thereb}'  injure  tlie  plaintiffs  in  their  property  and 
business  and  to  render  unsalable  the  product  and  output  of  their  said 
factory,  so  the  subject  of  int<'rstate  commerce,  in  whosoever's  hands 
the  same  mifi;lit  be  or  come,  through  said  interstate  trade  and  com- 
merce, anil  to  employ  as  means  to  carry  out  said  combination  and  con- 
spiracy and  the  purposes  thereof,  and  accomplish  the  same,  the  fol- 
lowing; measures  and  acts,  viz.: 

"To  cause,  by  means  of  tin-eats  and  coercion,  and  without  warning 
or  information  io  tlie  plaintiffs,  the  concerted  and  simultaneous  with- 
drawal of  all  the  makers  and  finishei-s  of  hats  then  working  for  them, 
who  were  not  meml)ers  of  their  said  combination,  The  United  Hatters 
of  North  America,  as  well  as  those  who  were  such  memlx^rs,  and 
therel)y  cripple  tiie  operation  of  th(>  plaintiffs'  factor^',  and  prevent 
the  plaintiffs  from  tilling  a  large  number  of  orders  then  on  hand,  from 
such  wholesale  dealers  in  States  other  than  Connecticut,  which  they 
had  engaged  to  fill  and  were  then  in  the  act  of  filling,  as  was  well 
known  to  the  defentlants;  in  connection  therewith  to  declare  a  boy- 
cott against  all  hats  made  for  sale  and  sold  and  d(>livcred,  or  to  Ix;  so 
sold  or  delivered,  by  the  plaintiffs  to  said  wholesale  dealers  in  States 
other  than  Connecticut,  and  to  actively  boycott  the  same  and  the 
business  of  those  who  shoiild  deal  in  them,  and  therel)y  prevent  the 
sale  of  the  same  by  those  in  whose  hands  they  might  be  or  come 
through  said  interstate  tratle  in  said  several  States;  to  procure  and 
cause  others  of  said  coml)inations  united  with  them  in  said  American 
Federation  of  Labor,  in  like  manner  to  declare  a  boycott  against  antl 
to  actively  boycott  the  same  and  the  business  of  such  wholesale  di^alers 
as  should  buy  or  sell  them,  and  of  those  who  should  purchase  them 
from  such  wholesale  dealers;  to  intimidate  such  wholesale  dealers 
from  purchasing  or  dealing  in  the  hats  of  the  plaintiffs  by  informing 
them  that  the  American  Federation  of  Labor  had  declared  a  boycott 
against  the  protluct  of  the  jilaintiffs  and  against  an}'  dealer  who 
should  handle  it,  and  that  the  same  was  to  be  actively  pressed  against 
them,  and  by  distributing  circulars  containing  notices  that  such 
dealers  and  their  customers  were  to  be  boycotted;  to  threaten  with  a 
boycott  those  customers  who  should  buy  any  goods  whatever,  even 
though  union  matle,  of  such  boycotted  dealers,  and  at  the  same  time 
to  notify  such  wholesale  tlealers  that  they  were  at  liberty  to  deal  in  the 
hats  of  any  other  non-union  manufacturer  of  similar  quality  to  those 
made  by  the  plaintiffs,  but  must  not  deal  in  th(^  hats  made  by  the 
plaintiffs  undc>r  threats  of  such  boycotting;  to  falsely  represent  to 
said  wholesale  dealers  and  their  customers,  that  the  plaintiffs  had 
discriminated  against   tiie  union  \uvn  in  their  emjiloy.  had  thrown 


126  FEDERAL   JURISDICTION  [CHAP.  Ill 

them  out  of  employment  because  they  refused  to  give  up  their  union 
cards  and  teach  boys,  who  were  intended  to  take  their  places  after 
seven  months'  instruction,  and  had  driven  their  employees  to  extreme 
measures  '  by  their  persistent,  unfair  and  im-American  pohcy  of 
antagonizing  union  labor,  forcing  wages  to  a  starvation  scale,  and 
given  boys  and  cheap,  unskilled  foreign  labor  preference  over  ex- 
perienced and  capable  union  workmen/  in  order  to  intimidate  said 
dealers  from  purchasing  said  hats  by  reason  of  the  prejudice  thereby 
created  against  the  plaintiffs  and  the  hats  made  by  them  among  those 
who  might  otherwise  pm-chase  them;  to  use  the  said  union  label  of 
said  The  United  Hatters  of  North  America  as  an  instrument  to  aid 
them  in  carrying  out  said  conspiracy  and  combination  against  the 
plaintiffs'  and  their  customers'  interstate  trade  aforesaid,  and  in  con- 
nection with  the  boycotting  above  mentioned,  for  the  purpose  of 
describing  and  identifying  the  hats  of  the  plaintiffs  and  singling  them 
out  to  be  so  boycotted;  to  employ  a  large  number  of  agents  to  visit 
said  wholesale  dealers  and  their  customers,  at  their  several  places  of 
business,  and  threaten  them  with  loss  of  business  if  they  should  buy  or 
handle  the  hats  of  the  plaintiffs,  and  thereby  prevent  them  from  buy- 
ing said  hats,  and  in  connection  therewith  to  cause  said  dealers  to  be 
waited  upon  by  committees  representing  large  combinations  of  per- 
sons in  their  several  localities  to  make  similar  threats  to  them ;  to  use 
the  daily  press  in  the  localities  where  such  wholesale  dealers  reside, 
and  do  business,  to  announce  and  advertise  the  said  boycotts  against 
the  hats  of  the  plaintiffs  and  said  wholesale  dealers,  and  thereby  make 
the  same  more  effective  and  oppressive,  and  to  use  the  columns  of 
their  said  paper.  The  Journal  of  the  United  Hatters  of  North  America, 
for  that  purpose,  and  to  describe  the  acts  of  their  said  agents  in  prose- 
cuting the  same." 

And  then  followed  the  averments  that  the  defendants  proceeded  to 
carry  out  their  combination  to  restrain  and  destroy  interstate  trade 
and  commerce  between  plaintiffs  and  their  customers  in  other  States 
by  employing  the  identical  means  contrived  for  that  purpose;  and 
that  by  reason  of  those  acts  plaintiffs  were  damaged  in  their  business 
and  property  in  some  $80,000. 

We  think  a  case  within  the  statute  was  set  up  and  that  the  de- 
murrer should  have  been  overruled. 

Jwhjment  reversed  and  cause  remanded  with  a  direction  to  proceed 
accordingly.^ 

*  See  Montague  &  Co.  v.  Lowry,  193  IT.  S.  .38  (combination  of  manufacturers). 

Whether  the  prohibitions  of  the  Shermuii  Act  were  coincident  with,  or  differed 
from,  those  of  the  (common  hiw  as  to  restraint  of  trade,  was  a  question  upon 
which  at  first  the  courts  differed.  See,  for  instance,  the  cases  of  United  States  v. 
Patterson,  .55  Fed.  005,  and  United  States  v.  Workingmen's  Amalgamated  Coun- 
cil, 54  Fed.  994. 

"Orantcfl  that  the  Act  floes  apply  to  consolidated  labor  as  well  as  to  consol- 
idated capital,  it  cannot  abridge  the  right  of  the  Tnen  to'combine  and  quit  work 
for  lawful  purposes,  or  to  do  other  lawful  acts,  even  though  by  them  interstate 


CHAP.  Ill]  FEDERAL  JUIUSDICTION  127 

TOLEDO,  ANN  ARBOR,  etc.,  RY.  CO.  v.  PENNSYL- 
\'AMA  CO.  et  ul. 

United  States  Ciucuit  Court,  N.  D.  Ohio.     1893 

54  Ftd.  730 

Tait,  Circuit  Judge.  This  is  a  motion  by  the  compUii riant,  the 
Toledo,  Ann  Arbor  &.  North  Michigan  Railway  Co.,  Un-  a  t('ini)orary 
injunction,  to  remain  in  force  peiulirif^  this  action,  aj^ainst  1'.  M. 
Arthur,  the  chief  executive  of  the  Brotherhood  of  Lcjcomotive  Kn- 
j^ineers,  and  a  defendant  herein,  to  restrain  him  from  issuin}^,  pro- 
mulKaliiiji,  or  contirujinp;  in  force  any  rule  or  order  of  .said  brotherhood, 
which  shall  require  or  conunand  any  employes  of  any  of  defendant 
railway  companies  herein  to  refase  to  handle  and  deliver  any  cars  of 
freip;ht  in  course  of  transportation  from  one  state  to  another  to  the 
complainant,  or  from  refusiiifz;  to  receive  and  handle  cars  of  such 
freight  which  have  been  hauled  over  complainant's  road;  and  also 
from  in  any  way,  directly,  or  indirectlj',  endeavoring  to  jxTsuade  any 
of  the  employes  of  the  defendant  railway  companies  whose  lines  con- 
nect with  the  railroad  of  complainant  not  to  extend  to  said  cominmy 
the  same  facilities  for  interciiange  of  interstate  traffic  as  are  extended 
by  said  companies  to  other  railway  companies.  A  temporary  restrain- 
ing order  to  this  effect  was  issued  by  me  against  Arthur  ex  parte.  A 
hearing  h4s  since  been  had,  and  the  question  now  is  whether,  on  the 
evidence  produced,  the  order  shall  be  continued  in  force  until  the 
final  tlecision  of  the  ciuse. 

The  original  bill  was  filed  against  eight  railway  companies  and  the 
suix^rintendents  of  two  of  them,  and  averred  that  the  defendants,  who 
were  operating  lines  of  railway'  connecting  with  that  of  the  com- 
plainant company  at  Toledo,  had  threatened  to  refuse  to  receive  from 
and  to  d(>liver  to  the  complainant  company  interstate  freight  on  the 
ground  that  their  locomotive  engineers,  who  were  members  of  the 
brotiierhood,  would  refuse  to  haul  or  handle  the  same,  becaus(>  com- 
plainant employed  on  its  line  engine(>rs  who  were  not  meml)ers  of  the 
brotherhood;  and  the  bill  furth(T  averred  that  if  the  threat  was  carried 
out  it  would  work  an  irreparable  injury  to  the  complainant,  for  which 
damages  could  not  be  estimated,  and  the  law  afforded  no  adequate 
remedy.  The  prayer  of  th(>  liill  was  for  an  order  (Mijoining  the  (h^fenil- 
ant  companies,  their  emploj-es  ami  servants,  from  refusing  to  receive 
and  deliver  complainant's  intei-state  freight.  A  temporarj'  order  as 
prayed  for  was  issued  by  Judge  Ricks.  An  amendment  to  the  bill 
was  afterwards  filed  making  two  new  defendants,  P.  M.  Arthur  and 
F.  P.  Sargent.   Sargent,  it  subsequently  appeared,  was  a  non-resident 

commcrrc  is  crippled.  The  ra.se  of  Waterhouse  v.  Comer  f55  Fed.  149)  alone 
intimates  tlu'  contrary." — J.  \V.  Bryan  in  40  .\m.  Law  Uov.  20().  .\s  ilhustni- 
tive  of  the  truth  of  the  forenoinn  statement,  .see  In  rv  Charge  to  Gnind  Jurv,  62 
Fed.  S2S,  ^V.\\  Arthur  r.  Oakes,  iW^  Fed.  810,  327;  United  States  v.  Debs,  Go  Fed. 
210,  211;   United  States  i-'.  Cassidy,  07  Fed.  09S. 


128  FEDERAL  JURISDICTION  [CHAP.  Ill 

of  the  district,  and  the  bill  as  against  him  was  dismissed  for  want  of 
jurisdiction.  As  to  Arthur,  the  amendment  charges  that  he,  as  chief  of 
the  brotherhood,  exercises  a  controlling  influence  upon  its  members  in 
all  matters  treated  by  its' rules  and  regulations;  that  one  of  its  rules 
requires  all  of  its  members  in  the  employ  of  any  railway  company, 
whenever  an  order  to  that  effect  shall  be  given  by  its  said  chief  officer, 
to  refuse  to  receive,  handle,  or  carry  cars  of  freight  from  any  other 
raih'oad  company  whose  emploj-es,  members  of  said  association,  have 
engaged  in  a  strike;  that  such  a  strike  has  been  declared  against  the 
complainant  by  the  members  of  the  brotherhood,  with  Arthur's  con- 
sent and  approval;  that  Arthur  now  publicly  announces  that,  unless 
complainant  shall  submit  to  the  demands  of  its  striking  employes,  he 
will  order  the  rule  above  stated  enforced;  that  the  rule  is  in  direct 
contravention  of  the  interstate  commerce  law,  and  is  intended  to  in- 
duce the  emploj-es  of  the  defendant  companies  to  violate  that  law  and 
the  previous  order  of  this  court ;  and  that  Arthur,  with  others,  is  con- 
spiring to  that  end. 

The  jurisdiction  of  this  court  to  hear  and  decide  the  case  made  by 
the  bill  cannot  be  maintained  on  the  ground  of  the  diverse  citizenship 
of  the  parties,  for  the  complainant  and  at  least  one  of  the  defendants 
are  citizens  of  the  same  state.  If  it  exists,  it  must  arise  from  the  sub- 
ject-matter of  the  suit.  The  bill  invokes  the  chancery  powers  of  this 
court  to  protect  the  complainant  in  rights  which  it  claims  under  the 
act  of  Congress  passed  February  4,  1887  (24  St.  at  Large,  p.  379), 
known  as  the  "Interstate  Commerce  Act,"  and  an  act  amending  it 
passed  March  2,  1889  (25  St.  at  Large,  p.  855).  .  .  . 

The  Brotherhood  of  Locomotive  Engineers  is  an  association,  organ- 
ized in  1863,  whose  members  are  locomotive  engineers  in  active  service 
in  the  United  States,  Mexico,  and  the  dominion  of  Canada.  Their 
nimiber  is  35,000.  The  engineers  engaged  with  the  defendant  com- 
panies are  most  of  them  members  of  the  brotherhood.  The  purpose  of 
the  brotherhood  is  declared  in  its  constitution  to  be  "more  effectually 
to  combine  the  interests  of  locomotive  engineers,  to  elevate  their 
standing  as  such,  and  their  character  as  men."  These  ends  are  sought 
to  be  obtained  by  requiring  that  every  member  shall  be  a  man  of  good 
moral  character,  of  temperate  habits,  and  a  locomotive  engineer  in 
actual  service  with  a  year's  experience,  and  by  imposing  the  penalty 
of  expulsion  upon  any  member  guilty  of  disgraceful  conduct  or  drunk- 
enness, of  neglect  of  duty,  of  injury  to  the  property  of  the  employer, 
or  of  endangering  the  lives  of  persons.  A  mutual  insurance  asso- 
ciation is  supported  in  connection  with  the  brotherhood,  in  which 
every  member  is  recjuired  to  carry  a  policy,  and  there  is  an  efficient 
employment  bureau  for  the  members.  A  strong  and  complete  organ- 
ization is  maintained  for  the  systematic  government  of  the  brother- 
hood, and  its  rules  are  well  adapt(>d  to  establishing  and  carrying  out 
general  and  local  plans  with  respect  to  the  t(>nns  of  em|)loyment  of  its 
members.   Submission  to  these  plans,  when  once  adopted  by  requisite 


I 


CHAP.  Ill]  FEDERAL   JURISDICTION  129 

vote,  is  required  of  every  member  on  pernilty  of  expulsion.  The  man- 
aK<'nient  of  controversies  with  employer  companies  is  immediately 
with  a  eluiirman  of  a  staiidinji;  K^'ueral  adjustment  conmiittcc  for  the 
particular  railroud  system  inv(jlved  and  afterwards  with  the  grand 
chief.  The  grand  chief  has  large  judicial  and  executive  jwwers.  He  is 
the  ultimate  authority  always  called  in  to  adjust  difTerences  Ix^tween 
memh(>rs  and  i\unv  employer,  and  he  is  the  one  to  whom  apix-als  are 
mad(5  to  settle  disputes  arising  Ix'tween  meml>ers  and  sulxlivisioiLS. 
He  is  also  the  head  of  the  insurance  company. 

Early  last  month  tlie  superintendent  of  complainant  company  re- 
fused to  grant  a  demand  by  its  engineers  for  higher  wages.  After 
some  unsuccessful  attempts  at  negotiation,  Artlun-,  who  had  been 
callcnl  in,  consented  to  the  strike,  which  had  i)reviously  been  voted  by 
two-thirds  of  the  brotherhood  men  in  complainant's  employ.  As  soon 
as  the  men  went  out  on  March  7th,  Arthur  sent  to  eleven  chairmen  of 
the  general  adjustnu-nt  connnittees  on  as  many  different  railroad 
systems  in  Ohio  and  the  neighl)oring  states  the  following  dispatch: 

"There  is  a  legal  strike  in  force  upon  the  Toledo,  Ann  Arbor  & 
North  Michigan  Railroad.  See  that  the  men  on  your  road  comply 
with  the  laws  of  the  brotherhood.     Notify  your  general  manager." 

A  "legal"  strike,  in  brotherhood  parlance,  means  one  consented  to 
by  the  grand  chief.  His  consent  is  necessary,  imder  the  rules  of  the 
order,  to  entitle  the  men  thus  out  of  employment  to  the  three  months' 
pay  allowed  to  striking  members.  Arthur  admits  that  the  particular 
law  to  which  he  referred  in  this  dispatch  was  one  adopted  by  the 
brotherhood  at  Denver  three  years  ago,  but  which  is  not  published 
in  the  printed  copy  of  the  constitution  and  by-laws.  It  is  as  fol- 
lows: 

"Twelfth.  That  hereafter,  when  an  issue  has  been  sustained  by  the 
grand  chief,  and  carried  into  etTect  by  the  B.  of  L.  E.,  it  shall  be  recog- 
nized as  a  violation  of  obligation  for  a  member  of  the  Brotherhood  of 
Locomotive  Engineers  Association  who  may  be  employed  on  a  rail- 
road running  in  connection  with  or  adjacent  to  said  road,  to  handle  the 
property  belonging  to  said  railroad  or  system  in  any  way  that  may 
ben(^fit  said  company  in  which  the  B.  of  L.  E.  is  at  issue  until  the 
grievance  or  issue  of  whatever  nature  or  kind  has  In^en  amicably 
settled."  ... 

The  result  of  this  was  that  engineers,  members  of  the  brotherhood, 
tlid  refuse  to  handle  complainant's  freight  on  connecting  lines  for  a 
short  time,  and  in  several  in.stances  quit  the  service  rather  than  do  so. 
On  the  17th  of  March  the  temporary  restraining  order  issued  by  me, 
and  above  referred  to,  was  served  on  Arthur.  He  was  therein  com- 
manded to  rescind  any  order  he  might  have  promulgated  to  engineers 
on  connecting  lines  to  refuse  to  handle  complainant's  freight.  I'nder 
advice  of  counsel  he  obeyed,  and  sent  a  dispatch  to  conunittee  chair- 
men rescinding  his  previous  dispatch  of  March  IGth.  This%ad  the 
effect  to  lift  tlie  "embargo,"  so-called. 


130  FEDERAL  JURISDICTION  [CHAP.  Ill 

The  result  of  this  evidence  is  that  the  members  of  the  Brotherhood 
of  Locomotive  Engineers  have  by  the  adoption  of  rule  12  made  an 
agreement  among  themselves  that  whenever  any  of  their  comrades, 
with  the  consent  of  Arthur,  leave  the  employ  of  one  company,  because 
the  terms  of  employment  are  unsatisfactory,  the  members  employed 
by  companies  operating  connecting  lines  will  inflict  an  injury  on  the 
first  company  by  preventing,  as  far  as  possible,  the  first  company 
from  doing  any  business  as  a  common  carrier,  involving  the  inter- 
change of  freight  with  connecting  hues.  The  engineers  of  the  connect- 
ing lines  are  to  effect  this  purpose  —  first,  by  refusing  to  handle  the 
freight  of  the  offending  company,  and,  second,  if  necessary,  by  quit- 
ting the  service  to  avoid  handhng  it,  in  order  that  the  connecting 
companies,  by  fear  of  the  evil  effect  of  a  strike  upon  their  own  business, 
will  be  compelled  to  join  with  their  engineers  in  a  refusal  to  handle  the 
offending  company's  freight  and  inflict  the  injury  which  is  the  main 
purpose  of  the  combination.  In  this  connection  should  be  noted,  in 
Arthur's  telegrams  of  March  7th  and  16th,  directing  the  enforcement 
of  rule  12,  the  significance  of  the  sentence,  "Notify  your  general 
manager,"  and  the  language  of  Watson's  dispatch  to  the  general  man- 
ager of  the  Lake  Shore  system.  These  notifications  were  threats  to 
the  connecting  companies,  which  it  was  hoped  would  lead  them  to 
assist  in  injuring  the  complainant  company.  No  such  notice  was 
thought  necessary  when  rule  12  was  suspended.  .  .  . 

It  will  be  convenient,  in  discussing  the  question  whether  any  relief 
can  properly  be  given  to  complainant  against  Arthm*,  to  consider 
rule  12  and  the  acts  done,  or  to  be  done,  in  pursuance  thereof  —  first, 
in  the  light  of  the  criminal  law;  second,  with  reference  to  their  char- 
acter as  civil  wrongs;  and,  third,  with  reference  to  the  remedies 
which  a  court  of  equity  may  afford  against  them. 

1.  The  complainant  and  defendant  companies  are  common  car- 
riers, subject  to  the  provisions  of  the  interstate  commerce  act,  and 
the  business  exchangad  between  them  is  averred  by  the  bill  to  be  nearly 
all  interstate  freight.  The  second  paragraph  of  the  third  section  of  the 
act  provides  that  — 

"All  common  carriers  subject  to  the  provisions  of  this  act  shall, 
according  to  their  respective  powers,  afford  all  reasonable,  proper,  and 
equal  faciliti(;s  for  the  interchange  of  traffic  between  their  respective 
lines,  and  for  the  receiving,  forwarding,  and  delivery  of  passengers  and 
property  to  and  from  their  several  lines  and  those  connecting  there- 
with, and  shall  not  discriminate  in  their  rates  and  charges  between 
such  connectiMg  lines."    24  St.  at  Large,  p.  379. 

In  view  of  the  foregoing  section,  it  needs  no  argument  to  demon- 
strate that  one  common  carrier  is  expressly  required  by  the  interstate 
commerce  act  to  freely  interchange  interstate  freight  with  another 
when  their  lines  connect. 

Sec.  10  of  the  act,  as  amended  (25  St.  at  Large,  p.  855),  provides 
that  — 


CHAP.  Ill]  FEDERAL  JUKISDICTION  131 

"Any  common  carrier  .subject  to  the  provisions  of  thi.s  act,  or,  when 
such  conunon  carrier  is  a  corporation,  any  director  or  officer  thereof, 
or  any  receiver,  tiust<'e,  or  les.see,  af.':ent,  or  person  acting  for  (jr  em- 
ployed by  sucli  corporation,  vvlio  al(;ne  av  with  any  other  c(jrp<jration, 
company,  person,  or  party,  .  .  .  shall  willfully  omit  or  fail  to  do  any 
act,  matter,  or  thing  in  this  res|)<'ct  recjuired  to  be  done,  or  shall  cau-se 
or  willingly  suffer  or  permit  any  act,  matter,  or  thing,  so  directed  or 
recjuired  in*  this  act  to  be  dour,  not  to  be  done,  or  shall  aid  or  alK*t 
such  omi.ssion  or  faihuc,  .  .  .  shall  be  deemed  guilty  (jf  a  mis- 
demeanor, and  shall,  upon  conviction  thereof  in  any  district  court  of 
the  United  8tat<'s  within  the  jurisdiction  of  which  such  offense  was 
committed,  be  sul)ject  to  a  fine  of  not  exceeding  .^.'jjOOO." 

liy  the  foregoing  section,  a  eoinnion  carrier  which  is  not  a  corjKjra- 
tion  is  made  hal^le  criminally  for  violations  of  ihe  interstate  com- 
merce law.  But  when  the  carrier  is  a  corporation  and  violates  the  law, 
not  the  corporation,  but  its  ofhcers,  agents,  and  joi'rsons  acting  for  or 
employetl  l)y  it  who  willfully  do  the  wrongful  work,  are  n:ade  liable. 
In  re  Peasley,  44  Fed,  Kep.  271,  The  corporation  is  made  civilly 
liable  under  sec.  8.  As  every  locomotive  engineer  of  the  defendant 
companies  is  a  "person  employed  by"  a  common  carrier  corporation 
subject  to  the  provisions  of  the  int(M-state  commerce  law,  he  is  guilty 
of  tlie  ofTense  descrilx'd,  and  sul)ject  to  the  penalty  imposed  by  sec.  10, 
if  he,  while  acting  as  engineiT  for  his  corporation,  refuses  to  handle 
interstate  freight  for  the  complainant,  and  thereby,  in  his  discharge 
of  a  function  of  the  company,  willfully  omits  to  do  an  act  required  by 
the  law  to  be  done;  and  it  is  immaterial  whether  what  he  does  or  fails 
to  do  in  violation  of  the  statute  is  with  or  without  the  orders  of  his 
principal.    U.  S.  v.  Tozer,  37  Fed.  Rep.  635. 

Arthur  and  all  the  members  cf  the  brotherhood  engaged  in  enforcing 
rule  12,  and  in  therel)y  aiding  and  alietting  cxory  such  engineer  to 
violate  the  section,  are  ecjually  guilty  with  him  as  principals  (V .  S.  v. 
Snyder,  14  Fed.  Rep.  554);  and  they  are  therel)y  aho  guilty  of  con- 
spiring to  commit  an  offense  against  the  United  States,  and  subject  to 
the  penalties  of  sec.  5440,  Rev.  St.  (U.S.  v.  Stevens,  44  Ycd.  lUp. 
132). 

But  suppose  that  this  view  of  sec.  10  is  erroneous,  and  that  the 
words,  "person  acting  for  or  employed  by  such  corporation,"  refer 
only  to  its  managing  officer  or  agent,  the  enforcement  of  rule  12,  with 
its  evident  purpose,  would  still  be  a  violation  of  law;  for  even  then  it 
is  quite  clear  that  any  one,  though  not  an  officer  or  agent,  successfully 
aiding,  abetting,  or  procuring  such  officer  or  agent  to  violate  the  sec- 
tion, would  be  punishable  under  it  as  a  principal.  Thus,  in  V.  S.  r. 
Snyder,  14  Fed.  Rep.  .5.54,  imder  a  statute  making  it  a  crime  for  a  post- 
master to  render  a  false  rei)ort  to  the  government  of  his  nn-eipts,  one 
who  aided,  abetted,  and  procured  a  postmaster  to  send  such  a  report 
was  found  guilty  as  principal  of  violating  the  statute,  and  the  convic- 
tion was  sustained  by  Judges  McOary  and  Nelson,  in  an  opinion 


132  FEDERAL   JURISDICTION  [CHAP.  Ill 

citing  authorities  fully  justifying  their  conclusion.  It  is  therefore 
evident  that  Arthur  and  the  other  members  of  the  brotherhood,  if 
successful  in  procuring  the  managing  officers  of  the  defendant  com- 
panies to  refuse  to  handle  interstate  freight  from  complainant  com- 
pany, would  be  guilty  of  violating  sec.  10,  and  punishable  as  principals 
thereunder. 

Sec.  5440,  Rev.  St.,  provides  that  — 

"If  two  or  more  persons  conspire  ...  to  commit  any  offense 
against  the  United  States,  .  .  .  and  one  or  more  parties  do  any  act  to 
effect  the  object  of  the  conspiracy,  all  the  parties  to  such  conspiracy 
shall  be  liable  to  a  penalty  of  not  more  than  $10,000,  or  to  imprison- 
ment for  not  more  than  two  years,  or  to  both  fine  and  imprisonment, 
in  the  discretion  of  the  court." 

All  persons  combining  to  carry  out  rule  12  of  the  brotherhood 
against  the  complainant  company,  if  any  one  of  them  does  an  act  in 
furtherance  of  the  combination,  are  punishable  under  the  foregoing 
section.  This  is  true,  because,  as  already  shown,  the  object  of  the 
conspiracy  is  to  induce,  procure,  and  compel  the  managing  officers  of 
the  defendant  companies  to  refuse  equal  facilities  to  the  complainant 
for  the  interchange  of  interstate  freight,  which,  as  we  have  seen,  is  an 
offense  against  the  United  States  by  virtue  of  sec.  10,  above  quoted. 
For  Arthur  to  send  word  to  the  committee  chairmen  to  direct  the  men 
to  refuse  to  handle  interstate  freight  of  complainant,  and  to  notify  the 
managing  officers  of  the  defendant  companies  with  the  intention  of 
procuring  them  to  do  so,  all  in  execution  of  rule  12,  is  an  act  in 
furtherance  of  the  conspiracy  to  procure  the  managing  officers  of  the 
defendant  companies  to  commit  a  crime,  and  subjects  him  and  all 
conspiring  with  him  to  the  penalties  of  sec.  5440,  Rev.  St.  Again,  for 
the  men,  in  furtherance  of  rule  12,  either  to  refuse  to  handle  the 
freight  or  to  threaten  to  quit,  or  actually  to  quit,  in  order  to  procure 
or  induce  the  officers  of  the  defendant  companies  to  violate  the  pro- 
visions of  the  interstate  commerce  law,  would  constitute  acts  in 
furtherance  of  the  conspiracy,  and  would  render  them  also  liable  to 
the  penalty  of  the  same  section. 

But  it  is  said  that  it  cannot  be  unlawful  for  an  employe  either  to 
threaten  to  quit  or  actually  to  quit  the  service  when  not  in  violation 
of  his  contract,  because  a  man  has  the  inalienable  right  to  bestow  his 
labor  where  he  will,  and  to  withhold  his  labor  as  he  will.  GencMally 
speaking,  thi.s  is  true,  but  not  absolutely.  If  he  use^  the  benefit  which 
his  labor  is  or  will  be  to  another,  by  threatening  to  withhold  it  or 
agreeing  to  bestow  it,  or  by  actually  withholding  it  or  bestowing  it, 
for  the  purpose  of  inducing,  procuring,  or  compelling  that  other  to 
commit  an  unlawful  or  criminal  act,  the  withholding  or  bestowing  of 
his  labor  for  sucli  a  purpose  is  itself  an  milawful  and  criminal  act.  The 
same  thing  is  \r\\r  with  regard  to  the  exercise  of  the  right  of  property. 
A  man  has  the  right  to  give  or  sell  his  pro])erty  where  hv  will,  Init  if  he 
give  or  sell  it,  or  r(>fuse  to  give  or  sell  it,  as  a  means  of  iiuhicing  or 


CHAP.  Ill]  FEDERAL  JURISDICTION  133 

compelling  another  to  commit  an  unlawful  act,  his  giving  or  selling  it 
or  refusal  to  do  so  is  itself  unlawful. 

Herein  is  found  the  difference  between  tiie  act  of  the  employes  of 
the  complainant  ((jinpany  in  combining  to  witiihold  the  Iwnefil  of 
their  labor  from  it  ami  the  act  of  the  einphjyes  of  tiie  defendant  com- 
panies in  combining  to  witlilujld  tiieir  labor  fnjm  them;  that  is,  the 
difference  between  the  strike  and  the  boycott.  The  one  combination, 
so  far  as  its  character  is  .shown  in  the  evidence,  was  lawful,  because  it 
was  for  the  lawful  purpose  of  selling  the  labor  of  those  engaged  in  it 
for  the  higlu'st  price  obtainable,  and  on  tlielx'st  terms.  The  pnjbable 
inconvenience  or  lo.ss  which  its  employes  might  impose  on  the  com- 
plainant company  by  withholding  their  labor  would,  under  ordinary 
circumstances,  be  a  legitimate  means  availai)le  to  tiiem  for  inducing  a 
compliance  with  their  demands.  But  the  employes  of  defendant  com- 
panies are  not  dissatisfied  with  the  terms  of  their  employment.  So  far 
as  apjx'ai's,  those  terms  work  a  mutual  benefit  to  employer  and  em- 
ployed. What  the  employes  threaten  to  do  is  to  deprive  the  defend- 
ant comj)anies  of  the  ix'nefit  thus  accruing  from  their  labor,  in  order  to 
induce,  procure,  anil  compel  the  companies  and  their  managing 
officers  to  consent  to  do  a  criminal  and  unlawful  injurj'  to  the  com- 
plainant. Neither  law  nor  morals  can  give  a  man  the  right  to  labor  or 
withhold  his  labor  for  such  a  purpose.   .   .   . 

We  have  thus  considered  with  sonu'  care  the  criminal  character  of 
rule  12  and  its  enforcement,  not  only  because,  as  will  presently  be 
seen,  it  assists  in  determining  the  civil  liabilities  which  grow  out  of 
them,  but  also  because  we  wish  to  make  plain,  if  we  can,  to  the  intelli- 
gent and  generally  law-abiding  men  who  compose  the  Brotherhood  of 
Locomotive  EngineiM's,  as  well  as  to  their  usually  conservative^chief 
officer,  what  wc  cannot  believe  they  appreciate,  that,  notwithstanding 
their  perfect  organization,  and  their  charital)le,  temperance,  and  other 
elevating  and  most  usi>ful  purposes,  the  existence  and  enforcement  of 
rule  12,  under  their  organic  law,  make  the  whole  brotherhood  a  crim- 
inal conspiracy  against  the  laws  of  their  countn»\ 

2.  We  now  come  to  the  character  of  rule  12,  and  its  enforcement  as 
a  civil  wrong  to  complainant.  Lord  Justice  Fry  said  in  the  ca.se  of 
Steam.ship  Co.  v.  McCuvgor,  23  Q.  B.  Div.  598,  624: 

"I  cannot  doul)t  that  whenever  jiersons  enter  into  an  indictal)le 
conspiracy,  and  that  agreement  is  carried  into  execution  by  the  con- 
spirators by  means  of  an  unlawful  act  or  acts  which  produce  private 
injury  to  some  person,  that  jierson  has  a  cause  of  action  against  the 
conspirators." 

Sec  also,  Buffalo  Lubricating  Oil  Co.  v.  Standard  Oil  Co.,  KMi  X. 
Y.  669,  12  N.  E.  Rep.  825;  Steamship  Co.  v.  McKenna,  30  Fed.  Hep. 
48;  Carew  v.  Rutherford,  106  Mass.  1 ;  and  Moores  r.  BricklaNcrs' 
Union,  23  Wkly.  Law  Bui.  48. 

Under  th(>  principle  above  stated,  .\rthur  and  all  the  nuMnbers  of  the 
brotherhood  engaged  in  causing  loss  to  the  complainant  are  liable  for 


134  FEDERAL  JURISDICTION  [CHAP.  Ill 

any  actual  loss  inflicted  in  pursuance  of  their  conspiracy.  The  gist  of 
any  such  action  must  be  not  in  the  combination  or  conspiracy,  15uf  in 
the  actual  loss  occasioned  thereby.  No  civil  Uability  arises  simply 
because  of  the  rule  12,  or  its  attempted  enforcement,  unless  injury  is 
done.  Ordinarily  the  only  difference  between  the  civil  liability  for 
acts  in  pursuance  of  a  conspiracy  and  for  acts  of  the  same  character 
done  by  a  single  person  is  in  the  greater  probability  that  such  acts 
when  done  by  many  in  a  combination  will  cause  injury.  If  a  single 
engineer  of  one  of  defendant  companies,  acting  alone,  and  with  intent 
to  injure  the  complainant,  should  cause  the  complainant  loss  by  refus- 
ing to  handle  its  interstate  freight,  complainant  could  maintain  a  right 
of  action  against  him  for  damages.  The  refusal  on  his  part  would  be  a 
wrongful  and  illegal  act  under  the  interstate  commerce  law,  and,  as 
said  by  Lord  Justice  Brett  in  Bowen  v.  Hall,  6  Q.  B.  Div.  333,  337: 
"  Whenever  a  man  does  an  act  which  in  law  and  in  fact  is  an  unlawful 
act,  and  such  an  act  as  may,  as  a  natural  and  probable  consequence 
of  it,  produce  injury  to  another,  and  which  in  the  particular  case  does 
produce  such  an  injury,  an  action  on  the  case  will  lie."  And  so,  if  a 
single  engineer,  with  intent  to  injure  complainant,  could,  by  threaten- 
ing to  quit  or  by  actually  quitting  for  the  purpose,  procure  or  induce 
the  defendant  company,  in  whose  employ  he  is,  to  inflict  a  loss  upon 
complainant  by  unlawfully  refusing  to  interchange  interstate  freight, 
complainant  could  hold  him  civilly  liable  for  the  loss.  By  sec.  8  of  the 
interstate  commerce  law  the  complainant  is  expressly  given  a  cause  of 
action  in  damages  against  any  connecting  common  carrier  company 
for  such  a  loss,  and  it  is  clear  upon  the  authorities  that  any  one  in- 
tentionally procuring  the  connecting  company  to  inflict  such  loss 
would  be  equally  liable.  Thus  in  Walker  v.  Cronin,  107  Mass.  555, 
the  supreme  judicial  court  of  that  state  sustained  an  action  for  dam- 
ages by  the  plaintiff,  who  was  a  shoe  manufacturer,  against  the  de- 
fendant, for  inducing  plaintiff's  employes  to  break  their  contracts  of 
service  with  him  to  his  injury.  In  Lumley  v.  Gye,  2  El.  &  Bl.  216,  it 
was  held  that  the  plaintiff  could  recover  damages  from  the  defendant 
for  procuring  a  third  person,  with  whom  the  plaintiff  had  made  a  con- 
tract, to  break  the  contract,  when  such  procuring  was  with  the  inten- 
tion of  injuring  the  plaintiff.  The  same  principle  was  announced  in 
Bowen  v.  Hall,  6  Q.  B.  Div.  333,  337,  and  has  since  been  followed  in 
other  cases,  and  the  doctrine  has  been  applied,  even  where  there  was 
not  a  binding  contract,  but  only  the  probability  that  one,  though  not 
binding,  would  be  performed.  See  Rice  v.  Manley,  66  N.  Y.  82,  and 
Benton  v.  Pratt,  2  Wend.  385.  If  a  person,  with  rights  secured  by  a 
contract,  may,  in  case  of  loss,  recover  damages  from  one  not  a  party 
to  the  contract,  who,  with  intent  to  injure  him,  induces  a  breach  of  it, 
a  fortiori  can  one  whose  rights  arc  secured  by  statute  recover  damages 
from  a  person  who,  with  intent  to  injure  him,  procures  the  violation  of 
those  rights  by  another,  and  causes  loss.  The  difficulty  in  supposing  or 
stating  any  civil  liability  when  the  acts  wc  have  been  discussing  arc 


CHAP.  Ill]  FEDEILVL  JUKISDICTKJ.V  135 

done  by  a  single  cnf^iiioer  is  in  the  improbability  that  either  by  singly 
refusing  to  handle  the  freight  he  could  cause  any  injury  to  complain- 
ant, or  by  singly  threatening  to  quit,  or  by  (juittiiig,  he  could  jjrocure 
his  company  to  tlo  so.  Hut  when  we  supi)<)sc  tliat  all,  or  m-urly  all,  the 
engineers  on  the  eight  ditTcrent  defendant  eoinj)anies  combine  with 
their  chief  to  do  these  unlawful  acts  for  the  purpose  of  injuring  com- 
plainant, the  intended  loss  becomes  not  only  probable,  but  inevi- 
table.i  .  .  . 

The  temporary  injunction  will  be  allowed,  a«  prayed  for.* 


OBSTRUCTING  THE  MAIL 

UniUd  SlaUs  Criminal  Code,  Section  201  ' 

Whoever  shall  knowingly  and  willfully  obstruct  or  retard  the  pas- 
sage of  the  mail,  or  any  carriage,  horse,  driver,  or  carrier,  or  car, 
steamboat,  or  otiier  conveyance  or  vessel  carrying  the  same,  shall  be 
fined  not  more  than  one  hundred  tlollars,  or  imprisoned  not  more  than 
six  months,  or  both. 

UNITED  STATES  i-.  KIRBY 

Supreme  Court  of  the  United  States.     1868 

7  WaU.  482 

The  defendants  were  indicted  for  knowingly  and  wilfully  obstruct- 
ing and  retarding  the  passage  of  the  mail  and  of  a  mail  carrier,  in  the 
District  Court  for  the  District  of  Kentucky.  The  case  was  certified  to 
the  Circuit  Court  for  that  district. 

*  The  remainder  of  the  opinion  dealing  with  the  power  of  a  court  of  equity 
to  afford  relief  by  the  issue  of  a  preliminary  injunction  is  omitted.  —  Ed. 

-  Accord:  Knudsen  v.  Benn,  123  Fed.  636  (interference  with  interstate  com- 
merce by  striking  employees  using  force  and  violence  to  i)rocure  other  employees 
to  leave  the  service);  United  States  v.  Workinginen's  Amalgamated  Council  of 
New  Orleans,  54  Fed.  904  (intimidation  and  violence);  Wabash  R.  Co.  v.  Hanna- 
han,  121  Fed.  563  (interference  with  interstate  commerce  by  labor  union  officials 
inciting  workmen  to  strike  in  breach  of  contract). 

Tlie  incidental  interference  with  interstate  commerce  resulting  from  a  strike 
for  a  lawful  purpose  docs  not  con.stitute  a  violation  of  the  federal  Interstate  Com- 
merce .\ct.  This  point  was  argued  and  di.sposed  of  in  Wal)asii  R.  Co.  r.  Hanna- 
han,  supra,  where  the  Court  says  (p.  575):  "It  is  also  argued  that  the  union  and 
concert  of  action  of  the  Brotherhood  of  Locomotive  Firemen  and  of  llailroad 
Trainmen,  as  sliown  by  the  proof  in  this  ca.se,  are  evidence  of  the  unlawful  con- 
spiracy complained  of.  As  already  ob.scrAcd  in  another  connection,  this  cannot  Imj 
so.  Their  purpo.se  being  lawful  —  that  is  to  say,  to  secure  increased  wages  and 
better  conditions  of  .service  —  the  coricert  of  action  is  jier  se  lawful  and  pro|)er, 
and,  in  the  absence  of  proof  of  a  purpose  to  accomplisli  their  ol)ject  f)y  unlawful 
means,  tlie  usual  presumj)fion  should  rather  l>e  imlulged  that  tliey  would  not 
resort  to  unlawful  means  to  accomplish  it." 

Sec  al.so  /;/  re  (Jrand  Jury.  (12  Fed.  S40:  hi  re  Charge  to  Crand  .lury,  62  Fed. 
828;   In  re  Grand  Jury,  62  Fed.  S.34;   I'nited  Stati-s  r.  C\i.ssitly.  ()7  Fed.  698. 

»  U.  S.  Comp.  Stats.,  sec.  10371;   formerly  Revised  St:it  ,  .<oc.  3095. 


136  FEDERAL  JURISDICTION  [CHAP.  Ill 

The  indictment  was  founded  upon  the  ninth  section  of  tl:ue  act  of 
Congress,  of  ^larch  3,  1825,  ''to  reduce  into  one  the  several  acts 
estabhshing  and  regulating  the  post  office  department,"  which  pro- 
vides "that,  if  any  person  shall  knowingly  and  wilfully  obstruct  or 
retard  the  passage  of  the  mail,  or  of  any  driver  or  carrier,  or  of  any 
horse  or  carriage  carrying  the  same,  he  shall,  upon  conviction,  for 
every  such  offence,  pay  a  fine  not  exceeding  one  hundred  dollars;  and 
if  any  ferr;>Tnan  shall,  by  wilful  negligence,  or  refusal  to  transport  the 
mail  across  the  ferry,  delay  the  same,  he  shall  forfeit  and  pay,  for 
every  ten  minutes  that  the  same  shall  be  so  delayed,  a  smu  not  ex- 
ceeding ten  dollars."   4  Stat,  at  Large,  104. 

The  indictment  contained  four  counts,  and  charged  the  defendants 
with  knowingly  and  wilfully  obstructing  the  passage  of  the  mail 
of  the  United  States,  in  the  district  of  Kentucky,  on  the  first  of 
February,  1867,  contrary  to  the  act  of  Congress;  and  with  knowingly 
and  wilfully  obstructing  and  retarding  at  the  same  time  in  that  dis- 
trict, the  passage  of  one  Farris,  a  carrier  of  the  mail,  while  engaged  in 
the  performance  of  his  duty;  and  with  knowingly  and  wilfully  re- 
tarding at  the  same  time  in  that  district,  the  passage  of  the  steamboat. 
General  Buell,  which  was  then  carrying  the  mail  of  the  United  States 
from  the  city  of  Louisville,  in  Kentucky,  to  the  city  of  Cincinnati,  in 
Ohio. 

To  this  indictment  the  defendants,  among  other  things,  pleaded 
specially  to  the  effect,  that  at  the  September  Term,  1866,  of  the 
Circuit  Court  of  Gallatin  County,  in  the  State  of  Kentucky,  which 
was  a  court  of  competent  jurisdiction,  two  indictments  were  found  by 
the  grand  jury  of  the  county  against  the  said  Farris  for  murder;  that 
by  order  of  the  court  bench  warrants  were  issued  upon  these  indict- 
ments, and  placed  in  the  hands  of  Kirby,  one  of  the  defendants,  who 
was  then  sheriff  of  the  county,  commanding  him  to  arrest  the  said 
Farris  and  bring  him  before  the  court  to  answer  the  indictments;  that 
in  obedience  to  these  warrants  he  arrested  Farris,  and  was  accom- 
panied by  the  other  defendants  as  a  posse,  who  wore  lawfully  smii- 
moned  to  assist  him  in  effecting  the  arrest;  that  they  entered  the 
steamboat  Buell  to  make  the  arrest,  and  only  used  such  force  as  was 
necessary  to  accomplish  this  end;  and  that  they  acted  without  any 
intent  or  purpose  to  obstruct  or  retard  the  mail,  or  the  passage  of  the 
steamer.  To  this  plea  the  district  attorney  of  th(^  United  States 
demurred,  and  upon  the  argument  of  the  demurrer  two  questions 
arose : 

First.  Whether  the  arrest  of  the  mail-carrier  upon  the  bench  war- 
rants from  the  Circuit  Court  of  Kentucky  was,  under  the  circum- 
stances, an  obstruction  of  the  mail  within  the  meaning  of  the  act  of 
Congress. 

Second.  Whether  the  arrest  was  obstructing  or  retarding  the  pas- 
sage of  a  carrier  of  the  mail  within  the  meaning  of  that  act. 


CHAP.  Ill]  FEDERAL  JUKISUICTIUX  I'M 

Upon  these  questions  the  judges  wore  opposed  in  opinion,  and  tiic 
questions  were  sent  to  this  court  upon  a  certificate  of  division.  .  .  . 

Mit.  Justice  Fiklu,  after  statin^^  the  case,  dchvercd  the  ofjinion  of 
the  court,  as  follows: 

There  can  be  hut  (Jiie  answer,  in  our  judf^nient,  to  the  (}uestions 
certified  to  us.  The  statute  of  C'onKre.s.s  b}-  its  terms  apjilies  only  to 
persons  who  "knowingly  and  wilfully"  obstruct  or  retard  the  passage 
of  the  mail,  or  of  its  carrier;  that  is,  to  those  who  know  tiiat  the  acts 
performeil  will  have  that  etTect,  and  pejTonn  tliein  with  the  iiitciiiion 
that  such  shall  Ix;  their  operation.  When  the  acts  which  create  the 
ol)struction  arc  in  them.setvpsiTrtlaw£ul,  the  inU'ntion  to  obstruct  will 
be  imputed  to  their  author,  although  the  attainment  of  other  ends 
may  hav<'  becMi  liis  primary  object.  Th(>  statute  has  no  reference  to 
acts  lawful  in  themselves,  from  the  execution  of  which  a  temporary 
delay  to  the  mails  unavoidably  follows.  .  .  .  The  public  incon- 
venience which  may  occasionally  follow  from  the  temporary  delay  in 
the  transmission  of  the  mail  caused  by  the  arrest  of  its  carriers  upon 
such  charges,  is  far  less  than  tluit  which  would  aris(>  from  extending  to 
them  the  immunity  for  which  the  counsel  of  the  government  contends. 
Indeed,  it  may  be  doubted  whether  it  is  competent  for  Congress  to 
exempt  the  employees  of  the  I^nitefl  States  from  arrest  on  criminal 
process  from  the  State  courts,  when  the  crimes  charged  against  them 
are  not  merely  main  prohibita,  but  are  mala  in  se.  But  whether  legisla- 
tion of  that  character  be  constitutional  or  not,  no  intention  to  extend 
such  exemption  should  be  attributed  to  Congress  unless  clearly  mani- 
fested by  its  language.  All  laws  should  receive  a  sensible  construction. 
General  terms  should  l)c  so  limitetl  in  their  application  as  not  to  lead 
to  injustice,  oppression,  or  an  absurd  consequence.  It  will  always, 
therefore,  be  presumed  that  the  legislature  intended  exceptions  to  its 
language,  which  would  avoid  results  of  this  character.  The  reason  of 
th(^  law  in  such  cases  should  jirevail  over  its  letter. 

The  connnon  sense  of  man  approves  the  judgment  mentioned  by 
Puffendorf,  that  the  Bolognian  law  which  enacted,  "that  whoever 
drew  blood  in  the  streets  should  be  punished  with  the  utmost  sever- 
ity," did  not  extend  to  the  surgeon  who  opened  the  vein  of  a  person 
that  fell  down  in  the  street  in  a  fit.  The  same  conunon  sense  accepts 
the  ruling,  cited  by  Plowden,  that  the  statute  of  1st  lulward  II,  which 
enacts  that  a  prisoner  who  breaks  prison  shall  be  guilty  of  felony,  docs 
not  extend  to  a  prisoner  who  breaks  out  wIumi  the  prison  is  on  fire  — 
"for  he  is  not  be  to  hanged  l)ecause  he  would  not  stay  to  l^e  burnt." 
And  we  think  that  a  like  common  sense  will  sanction  the  ruling  we 
make,  that  the  act  of  Congress  which  ]nmishes  the  obstruction  or  re- 
tarding of  the  passage  of  the  mail,  or  of  its  carrier,  does  not  apply  to  a 
ca.se  of  temporary  detention  of  the  mail  caused  by  the  arrest  of  the 
carrier  upon  an  indictment  for  murder. 

The  questions  certified  to  us  nuist  be  answered  in  the  negative;  and 
it  is  So  ordered. 


138  FEDERAL  JURISDICTION  [CHAP.  Ill 

Mr.  Justice  Miller,  having  been  absent  at  the  hearing,  took  no 
part  in  this  order.^ 

IN  RE  DEBS 

Supreme  Court  of  the  United  States.     1895 

158  U.  S.  564 

On  July  2,  1894,  the  United  States,  by  Thomas  E.  Milchrist,  dis- 
trict attorney  for  the  Northern  District  of  Ilhnois,  under  the  direction 
of  Richard  Olney,  Attorney  General,  filed  their  bill  of  .complaint  in  the 
Circuit  Court  of  the  United  States  for  the  Northern  District  of  Illinois 
against  these  petitioners  and  others.  This  bill  set  forth,  among  other 
things,  the  following  facts :  It  named  twenty -two  railroad  companies, 
and  it  alleged  that  they  were  engaged  in  the  business  of  interstate 
commerce  and  subject  to  the  provisions  of  the  act  of  Congress  of 
February  4,  1887,  known  as  "the  Interstate  Commerce  Act,"  and  all 
other  laws  of  the  United  States  relating  to  interstate  transportation  of 
passengers  and  freight;  that  the  number  of  passengers  annually 
carried  by  them  into  the  city  of  Chicago  from  other  States  than  Illi- 
nois, and  out  of  Chicago  into  other  States  than  Illinois,  was  more  than 
twelve  millions,  and  in  like  manner  that  the  freight  so  carried  into  and 
out  of  the  city  of  Chicago,  from  and  into  other  States  than  Illinois, 
amounted  to  many  millions  of  tons;  that  each  of  the  roads  was  under 
contract  to  carry,  and  in  fact  carrying,  the  mails  of  the  United  States ; 
that  all  were  by  statute  declared  post  roads  of  the  government;  that 
many  were  by  special  acts  of  Congress  required  at  any  and  all  times  to 
carry  the  troops  and  military  forces  of  the  United  States,  and  pro- 
visions, munitions,  and  general  supplies  therefor;  and  that  two  of 
them  were  in  the  hands  of  receivers  appointed  by  the  courts  of  the 
United  States.  It  stated  at  some  length  the  necessity  of  the  continued 
and  uninterrupted  running  of  such  interstate  railroads  for  the  bring- 
ing into  the  city  of  Chicago  supplies  for  its  citizens  and  for  the  carry- 
ing on  of  the  varied  industries  of  that  city. 

The  bill  further  averred  that  four  of  the  defendants,  naming  them, 
were  officers  of  an  association  known  as  the  American  Railway  Union; 
that  in  the  month  of  May,  1894,  there  arose  a  difference  or  dispute 
between  the  Pullman  Palace  Car  Co.,  and  its  employees,  as  the  result 
of  which  a  considerable  portion  of  the  latter  left  the  service  of  the  car 
company;  that  thereafter  the  four  officers  of  the  railway  union  com- 
bined together,  and  with  others,  to  compel  an  adjustment  of  such  dis- 
pute, by  creating  a  boycott  against  the  cars  of  the  car  company;  that, 
to  make  such  boycott  effective,  they  had  already  prevented  certain  of 
the  railroads  running  out  of  Chicago  from  operating  their  trains,  and 
were  combining  to  extend  such  boycott  against  Pullman  sleeping  cars 
by  causing  strikes  among  employees  of  all  railroads  attempting  to  haul 

»  Compare  Unitod  Statos  r.  Cassidy,  67  Fed.  008,  009. 

See  also,  Cliurch  of  the.  Holy  Trinity  r.  llnitcnl  States,  143  U.  S.  457. 


CHAP.  Ill]  FEDERAL  JURISDICTION  139 

the  same.  It  charKcd  kiunvlcdKc  on  tlu'  pint  of  tijc  defendants  of  the 
necessity  of  the  use  of  sleeping  cars  in  the  oi>eration  of  the  biwiness  of 
the  raihoads  as  conunon  carriers,  of  the  contracts  for  such  use  lx?tween 
the  railroad  companies  and  the  car  company,  of  the  contracts,  laws, 
and  rcf^ulations  bindinfz;  the  railway  companies  anil  the  receivers  to  the 
carrying  of  the  mails;  also  of  the  fiict  that  sleepin>^  cars  were  and  of 
necessity  must  he  carried  upon  the  trains  of  said  carriers  with  cars 
containing  the  mails;  that  with  this  knowledge  they  entered  into  a 
combination  and  conspiracy  to  prev(!nt  the  railroad  com|)anies  and 
the  receivers,  and  each  of  them,  from  performing  their  duties  as  c(jm- 
mon  carriers  of  interstate  commerce,  and  in  carrying  into  execution 
that  conspiracy  did  induce  various  employees  of  the  railway  com- 
panies to  leave  the  service  of  the  companies,  and  prevent  such  com- 
panies and  the  receivers  from  securing  other  jxTsons  to  take  their 
places;  that  they  issued  orders,  notifications,  etc.,  to  the  members  of 
the  railway  union  to  leave  the  service  of  the  companies  and  receivers, 
and  to  prevent  the  companies  and  receiversfrom  operating  their  trains; 
that  they  had  asserted  that  they  could  and  would  tie  up,  paralyze, 
and  break  down  any  and  every  of  said  railway  companies  and  receivers 
which  did  not  accede  to  their  demands;  that  in  pursuance  of  the  in- 
structions, commands,  and  requ(^sts  of  said  officers  large  numlwrs  of 
the  employees  of  the  railway  companies  and  receivers  left  their  service. 

Then  followed  these  allegations:  .  .  . 

''  Your  orator  further  avers  that,  pursuant  to  said  combination  and 
conspiracy,  and  under  the  direction  as  aforesaid  of  said  officers  and 
directors  of  said  American  Railway  Union,  said  other  defendants 
and  other  persons  whose  names  are  to  your  orator  unknown,  pro- 
ceeded by  collecting  together  in  large  numl)ers,  by  threats,  intimida- 
tion, force  and  violence  at  the  station  grounds,  yards  and  right  of  way 
of  said  railroad  companies,  respectively,  in  the  State  of  Illinois,  to  pre- 
vent said  railroad  companies  from  employing  other  persons  to  fill  the 
vacancies  aforesaiil;  to  compel  others  still  employees  of  saiti  railroad 
companies  to  (piit  such  employment  and  to  refuse  to  perform  the 
duties  of  their  service,  and  to  prevent  the  persons  remaining  in  such 
service  and  ready  and  willing  to  perform  the  duties  of  the  same,  from 
doing  so. 

"  Your  orator  further  avers  that  said  defendants,  in  pursuance  of 
said  coml)ination  and  conspiracy,  acting  under  the  direction  of  said 
officers  and  directors  of  said  American  Railway  Union,  did  with  force 
and  violence  at  divers  times  and  places  within  saitl  State  of  Illinois 
and  elsewhere,  stop,  obstruct  and  derail  and  wr(>ck  the  (Migines  and 
trains  of  said  railroad  companies,  both  passenger  and  freight,  then 
and  there  engaged  in  interstate  commerce  and  in  transporting  I'nited 
States  mails,  l)y  locking  the  switches  of  the  railroad  of  said  railroad 
compani(>s,  l)y  removing  the  spikes  and  rails  from  the  track  thereof, 
by  turning  switches  and  displacing  and  destroying  signals,  by  assault- 
ing and  interfering  with  and  disabling  the  switchmen  and  other  em- 


140  FEDERAL   JURISDICTION  [CHAP.  Ill 

ployees  of  said  railroad  companies  having  charge  of  the  signals, 
switches  and  tracks  of  said  companies,  and  the  movement  of  trains 
thereon,  and  in  other  manners  by  force  and  violence,  depriving  the 
employees  of  said  railroad  companies  in  charge  of  such  trains  of  the 
control  and  management  of  the  same,  and  by  these  and  other  unlaw- 
ful means  attempted  to  obtain  and  exercise  absolute  control  and 
domination  over  the  entire  operations  of  said  railroads."  ^  .  .  .  Fol- 
lowing these  allegations  was  a  praj-er  for  an  injunction.  .  .  . 

On  presentation  of  it  to  the  court  an  injunction  was  ordered  com- 
manding the  defendants  "and  all  persons  combining  and  conspiring 
with  them,  and  all  other  persons  whomsoever,  absolutely  to  desist  and 
refrain  from  in  any  way  or  manner  interfering  with,  hindering,  ob- 
structing or  stopping  any  of  the  business  of  any  of  the  following 
named  railroads  "  (specifically  naming  the  various  roads  named  in  the 
bill),  "as  common  carriers  of  passengers  and  freight  between  or  among 
any  States  of  the  United  States,  and  from  in  any  way  or  manner  inter- 
fering with,  hindering,  obstructing  or  stopping  any  mail  trains,  express 
trains  or  other  trains,  whether  freight  or  passenger,  engaged  in  inter- 
state commerce,  or  carrying  passengers  or  freight  between  or  among 
the  States."  2  ... 

This  injunction  was  served  upon  the  defendants  —  at  least  upon 
those  who  are  here  as  petitioners.  On  July  17  the  district  attorney 
filed  in  the  office  of  the  clerk  of  said  court  an  information  for  an  at- 
tachment against  the  four  defendants,  officers  of  the  railway  union, 
and  on  August  1  a  similar  information  against  the  other  petitioners. 
A  hearing  was  had  before  the  Circuit  Court,  and  on  December  14 
these  petitioners  were  found  guilty  of  contempt,  and  sentenced  to  im- 
prisonment in  the  county  jail  for  terms  varying  from  three  to  six 
months.  64  Fed.  Rep.  724.  Having  been  committed  to  jail  in  pur- 
suance of  this  order  they,  on  January  14,  1895,  applied  to  this  court 
for  a  writ  of  error  and  also  one  of  habeas  corpus.  The  former  was,  on 
January  17,  denied,  on  the  ground  that  the  order  of  the  Circuit  Court 
was  not  a  final  judgment  or  decree.  The  latter  is  now  to  be  con- 
sidered. .  .  . 

Mr.  Justice  Brewer,  after  stating  the  case,  delivered  the  opinion 
of  the  court. 

The  case  presented  by  the  bill  is  this:  The  United  States,  finding 
that  the  interstate  transportation  of  persons  and  property,  as  well  as 
V  the  carriage  of  the  mails,  is  forcibly  obstructed,  and  that  a  combina- 

/  tion  and  conspiracy  exists  to  subject  the  control  of  such  transportation 

to  the  will  of  the  conspirators,  applied  to  one  of  their  courts,  sitting  as 
a  court  of  equity,  for  an  injunction  to  restrain  such  obstruction  and 
prevent  carrying  into  eff(H't  such  conspiracy.  Two  questions  of  im- 
portance are  presented :  First.  Are  the  relations  of  the  general  govern- 

'  Other  allegations  contained  in  the  bill  are  omitted.  —  Ed. 
^  The  injunction  will  .be  found  on  p.  751,  infra.    Only  a  portion  of  it  is  here 
given.  —  Ed. 


CHAP.  Ill]  FEDERAL   J  UKISDICTION  141 

ment  to  interstate  commerce  ai-d  tlie  transportation  of  the  mails  such 
as  authorize  a  tUrect  interference  to  prevent  a  forcible  obstruction 
thereof?  Second.  If  authority  exists,  as  authority  in  governmental 
affairs  implies  \hA\i  power  and  duty,  hasjtjourt  of  ecjuity  jurisdiction 
to  issue  an  injunction  in  aid  of  the  ix-rfornuince  of  such  duty? 

First.  What  are  the  relations  of  tiie  g^'i'i'ial  ^^(JVcrnnK'nt  to  inter- 
state commerce  and  the  transportation  of  the  mails?  They  are  those 
of  direct  suiM'rvision,  control,  and  management.  While  under  the  dual 
system  which  prevails  with  us  the  powei-s  of  Kovcrnmcnt  are  dis- 
tributed between  the  State  and  the  Nation,  and  while*  the  latter  is 
properly  styled  a  gorernnient  of  enumerated  powers,  yet  within  the 
limits  of  such  enumeration  it  ha.s  all  the  attributes  of  sovereignty,  and, 
in  the  exercise;  of  those  enumerated  powers,  acts  directly  upon  the 
citizen,  and  not  through  the  intermediate  agency  of  the  State.   .   .   . 

Among  the  powers  expressly  given  to  the  national  government  are 
the  control  of  interstate  conunerce  and  the  creation  and  management 
of  a  post  office  system  for  the  nation.  Article  I,  section  8,  of  the  Con- 
stitution provides  tiiat  ''the  Congn'ss  shall  have  power.  .  .  .  Third, 
to  regulate  conunerce  with  foreign  nations  and  among  the  several 
States,  and  with  the  Indian  tribes.  .  .  .  Seventh,  to  establish  post 
offices  and  post  roads." 

Congress  h:is  exercised  the  power  granted  in  respect  to  interstate 
commerce  in  a  variety  of  legislative  acts.   .   .   . 

Under  the  power  vested  in  Congress  to  establish  post  offices  and 
post  roads,  Congress  has,  by  a  mass  of  legislation,  established  the 
great  post  office  system  of  the  country,  with  all  its  detail  of  organiza- 
tion, its  machinery  for  the  transaction  of  l)usiness,  defining  what  shall 
be  carried  and  what  not,  and  the  jirices  of  carriage,  and  also  prescrib- 
ing penalties  for  all  offences  against  it.   .  ,  . 

As,  under  the  Constitution,  power  over  interstate  commerce  and 
the  transportation  of  the  mails  is  vest(Hl  in  the  national  government, 
and  Congress  l)y  virtue  of  such  grant  has  assumed  actutd  and  direct 
control,  it  follows  that  the  national  government  may  prevent  any  un- 
lawful and  forcible  interference  therewith.  But  how  shall  this  be  ac- 
complished? Doubtless,  it  is  within  the  competency  of  Congress  to 
prescribe  by  legislation  t»hat  any  interference  with  these  matters  shall 
be  offences  against  the  United  States,  and  prosecuted  antl  punished 
by  indictment  in  the  proper  courts.  But  is  that  the  only  remedy? 
Have  the  vast  interests  of  the  nation  in  interstate  commerce,  and  in 
the  transportation  of  the  mails,  no  other  protection  than  lies  in  the 
possible  punishment  of  those  who  interfere  with  it?  To  ask  the  (]ues- 
tion  is  to  answer  it.  By  article  3,  section  2,  clause  3,  of  the  Federal 
Constitution  it  is  provided:  "The  trial  of  all  crimes  except  in  cases  of 
impeachment  shall  be  by  jur>';  and  such  trial  shall  be  held  in  the 
State  where  the  said  crime  shall  have  been  committed."  If  all  the  in- 
hal)itants  of  a  State,  or  even  a  great  body  of  them,  should  combine  to 
obstruct  intei"state  conunerce  or  the  transportation  of  the  mails,  pros- 


142  FEDERAL  JURISDICTION  [CHAP.  Ill 

ecutions  for  such  offences  had  in  such  a  community  would  be  doomed 
in  advance  to  failure.  And  if  the  certainty  of  such  failure  was  known, 
and  the  national  government  had  no  other  way  to  enforce  the  free- 
dom of  interstate  commerce  and  the  transportation  of  the  mails  than 
by  prosecution  and  punishment  for  interference  therewith,  the  whole 
interests  of  the  nation  in  these  respects  would  be  at  the  absolute 
mercy  of  a  portion  of  the  inhabitants  of  that  single  State. 

But  there  is  no  such  impotency  in  the  national  government.  The 
entire  strength  of  the  nation  may  be  used  to  enforce  in  any  part  of  the 
land  the  full  and  free  exercise  of  all  national  powers  and  the  security  of 
all  rights  entrusted  by  the  Constitution  to  its  care.  The  strong  arm  of 
the  national  government  may  be  put  forth  to  brush  away  all  obstruc- 
tions to  the  freedom  of  interstate  commerce  or  the  transportation  of 
the  mails.  If  the  emergency  arises,  the  army  of  the  Nation,  and  all  its 
militia,  are  at  the  service  of  the  Nation  to  compel  obedience  to  its 
laws. 

But  passing  to  the  second  question,  is  there  no  other  alternative 
than  the  use  of  force  on  the  part  of  the  executive  authorities  whenever 
obstructions  arise  to  the  freedom  of  interstate  commerce  or  the  trans- 
portation of  the  mails?  Is  the  army  the  only  instrument  by  which 
rights  of  the  public  can  be  enforced  and  the  peace  of  the  nation  pre- 
served? Grant  that  any  public  nuisance  may  be  forcibly  abated 
either  at  the  instance  of  the  authorities,  or  by  any  individual  suffering 
private  damage  therefrom,  the  existence  of  this  right  of  forcible  abate- 
ment is  not  inconsistent  with  nor  does  it  destroy  the  right  of  appeal  in 
an  orderly  way  to  the  courts  for  a  judicial  determinatiom,  and  an  exer- 
cise of  their  powers  by  writ  of  injunction  and  otherwise  to  accomplish 
the  same  result.  .  .  . 

In  the  case  before  us,  the  right  to  use  force  does  not  exclude  the 
right  of  appeal  to  the  courts  for  a  judicial  determination  and  for 
the  exercise  of  all  their  powers  of  prevention.  Indeed,  it  is  more  to 
the  praise  than  to  the  blame  of  the  government,  that,  instead  of  deter- 
mining for  itself  questions  of  right  and  wrong  on  the  part  of  these  peti- 
tioners and  their  associates  and  enforcing  that  determination  by  the 
club  of  the  policeman  and  the  bayonet  of  the  soldier,  it  submitted  all 
those  questions  to  the  peaceful  determination  of  judicial  tribunals,  and 
invoked  their  consideration  and  judgment  as  to  the  measure  of  its 
rights  and  powers  and  the  correlative  obligations  of  those  against 
whom  it  made  complaint.  And  it  is  equally  to  the  credit  of  the  latter 
that  the  judgment  of  those  tribunals  was  by  the  great  body  of  them 
respected,  and  the  troubles  which  threatened  so  much  disaster  ter- 
minated. 

Neither  can  it  be  doubted  that  the  government  has  such  an  interest 
in  the  subject-matter  as  enables  it  to  appear  as  party  plaintiff  in  this 
suit.  It  is  said  that  equity  only  interferes  for  the  protection  of  prop- 
erty, and  that  the  government  has  no  propcM'ty  interest.  A  sufficient 
reply  is  that  the  TTnited  States  have  a  pn)|MMty  in  tiie  mails,  the  pro- 
tection of  which  was  one  of  the  purposes  of  this  bill.  .  .  . 


CHAP.   Ill]  FEDERAL    JURISDICTION  143 

W'c  do  not  can?  to  place  our  decision  upon  tliis  ground  al(jne.  Every 
i^ovcrninent,  entrusted,  by  the  very  terms  of  its  l>eing,  with  powers 
and  duties  to  he  exercised  and  discharged  for  tlie  general  welfare,  has 
a  right  to  apply  to  its  own  courts  for  any  proi>er  assistance  in  the 
exercise  of  the  one  and  the  discharge  of  the  other,  and  it  is  no  sufhcient 
answ(T  to  its  appeal  to  one  of  those  courts  that  it  has  no  jx'cuniary 
interest  in  the  matter.  The  obligations  which  it  is  under  to  promote 
the  int"rt'st  of  all,  and  to  prevent  the  wrongdojig  of  one  n-.^^ulting  in 
injury  to  the  general  welfaic,  is  often  of  it.self  sufhcient  to  give  it  a 
standing  in  court.  This  prcjposition  in  some  of  its  relations  has  hereto- 
fore received  tlie  .sanction  of  this  court.   .   .   . 

It  is  obvious  that  while  it  is  not  the  province  of  tlie  government  to 
interfere  in  any  mere  matter  of  private  c(jntroversy  between  individ- 
uals, or  to  use  its  great  pinvers  to  enforce  the  rights  of  <jne  against  an- 
other, yet,  whenever  the  wrongs  complained  of  arc  such  as  affect  the 
public  at  large,  and  are  in  respect  of  matters  which  l)y  the  Constitu- 
tion are  entrust  nl  to  the  care  of  the  Nation,  and  concerning  which  the 
Nation  owes  the  duty  to  all  the  citizens  of  securing  to  them  their  com- 
mon rights,  then  the  mere  fact  that  the  goverinuent  has  no  }X'cuniary 
interest  in  the  controversy  is  not  sufficient  to  exclude  it  from  the 
courts,  or  prevent  it  from  taking  measures  therein  to  fully  discharge 
tho.se  constitiitional  duties. 

The  national  government,  given  by  the  Constitution  power  to 
regulate  interstate  connnerce,  has  by  express  statute  assumed  juris- 
diction over  such  commerce  when  carried  upon  railroads.  It  is  charged, 
therefore,  with  the  duty  of  keeping  those  highways  of  interstate  com- 
merce free  from  obstruction,  for  it  has  always  been  recognized  as  one 
of  the  powers  and  duties  of  a  government  to  remove  obstructions  from 
the  highways  under  its  control.   .   .  . 

That  the  bill  filed  in  this  case  alleged  special  facts  calling  for  the 
exercise  of  all  the  powers  of  the  court  is  not  open  to  question.  The 
picture  drawn  in  it  of  the  vast  interests  involved,  not  mereh'  of  the 
city  of  Chicago  and  the  State  of  Illinois,  but  of  all  the  States,  and 
the  general  confu.sion  into  which  the  interstate  connnerce  of  the  coun- 
try was  thrown;  the  forcible  interference  with  that  connnerce;  the 
attempted  exerci.se  b}'  individuals  of  powers  belonging  only  to  gov- 
ernment, and  the  threatened  continuance  of  such  inva.sions  of  public 
right,  presented  a  condition  of  affairs  which  called  for  the  fullest 
exercise  of  all  the  powers  of  the  courts.  If  ever  there  was  a  special 
exigency,  one  which  demanded  that  the  comt  should  do  all  that 
courts  can  do,  it  was  disclosed  by  this  bill,  and  we  need  not  turn  to 
the  public  history  of  the  day,  which  only  reaffirms  with  ch^arest 
emphasis  all  its  allegations.   .   .   . 

It  must  be  i)orne  in  mind  that  this  l)ill  was  not  simply  to  enjoin  a 
mob  anil  mol)  violence.  It  was  not  a  bill  to  connnand  a  keeping  of  the 
peace;  nmch  less  was  its  purport  to  restrain  the  defendants  from 
abandoning  whatever  enijiloynKMit  they  wen>  engaged  in.     The  right 


144  FEDERAL  JURISDICTION  [CHAP.  Ill 

of  any  laborer,  or  any  number  of  laborers,  to  quit  work  was  not  chal- 
lenged. The  scope  and  purpose  of  the  bill  was  only  to  restrain  forcible 
obstructions  of  the  highways  along  which  interstate  commerce  travels 
and  the  mails  are  carried.  And  the  facts  set  forth  at  length  are  only 
those  facts  which  tended  to  show  that  the  defendants  were  engaged  in 
such  obstructions.  .  .  . 

We  have  given  to  this  case  the  most  careful  and  anxious  attention, 
for  we  realize  that  it  touches  closely  questions  of  supreme  importance 
to  the  people  of  this  country.  Summing  up  our  conclusions,  we  hold 
that  the  government  of  the  United  States  is  one  having  jurisdiction 
over  every  foot  of  soil  within  its  territory,  and  acting  directly  upon 
each  citizen;  that  while  it  is  a  government  of  enumerated  powers,  it 
has  within  the  limits  of  those  powers  all  the  attributes  of  sovereignty; 
that  to  it  is  committed  power  over  interstate  commerce  and  the  trans- 
mission of  the  mail;  that  the  powers  thus  conferred  upon  the  na- 
tional government  are  not  dormant,  but  have  been  assumed  and  put 
into  practical  exercise  by  the  legislation  of  Congress;  that  in  the 
exercise  of  those  powers  it  is  competent  for  the  nation  to  remove  all 
obstructions  upon  highways,  natural  or  artificial,  to  the  passage  of 
interstate  commerce  or  the  carrying  of  the  mail ;  that  while  it  may  be 
competent  for  the  government  (through  the  executive  branch  and  in 
the  use  of  the  entire  executive  power  of  the  nation)  to  forcibly  remove 
all  such  obstructions,  it  is  equally  within  its  competency  to  appeal  to 
the  civil  courts  for  an  inquiry  and  determination  as  to  the  existence 
and  character  of  any  alleged  obstructions,  and  if  such  are  found  to 
exist,  or  threaten  to  occur,  to  invoke  the  powers  of  those  courts  to 
remove  or  restrain  such  obstructions;  that  the  jurisdiction  of  courts 
to  interfere  in  such  matters  by  injunction  is  one  recognized  from 
ancient  times  and  by  indubitable  authority;  that  such  jurisdiction 
is  not  ousted  by  the  fact  that  the  obstructions  are  accompanied  by  or 
consist  of  acts  in  themselves  violations  of  the  criminal  law;  that  the 
proceeding  by  injunction  is  of  a  civil  character,  and  may  be  enforced 
by  proceedings  in  contempt;  that  such  proceedings  are  not  in  execu- 
tion of  the  criminal  laws  of  the  land;  that  the  penalty  for  a  violation 
of  injunction  is  no  substitute  for  and  no  defence  to  a  prosecution  for 
any  criminal  offences  committed  in  the  course  of  such  violation ;  that 
the  complaint  filed  in  this  case  clearly  showed  an  existing  obstruction 
of  artificial  highways  for  the  passage  of  interstate  connnerce  and  the 
transmission  of  the  mail  —  an  obstruction  not  only  temporarily 
existing,  but  threatening  to  continue;  that  under  such  complaint 
the  Circuit  Court  had  power  to  issue  its  process  of  injunction;  that 
it  having  been  issued  and  served  on  these  defendants,  the  Circuit 
C'ourt  had  authority  to  inquire  whether  its  orders  had  been  dis- 
obeyed, and  when  it  found  that  they  had  been,  then  to  proceed  \mder 
sec.  725,  Revised  Statutes,  which  grants  power  "to  punish,  by  fine  or 
imprisonment,  .  .  .  disobedience,  ...  by  any  party  ...  or  other 
person,  to  any  lawful  writ,  process,  order,  rule,  decree  or  command," 


CHAP.  Ill]  FEDEIL\L  JURISDICTION  145 

and  outer  tho  order  of  punisliiiicnt  cotiiplaiiicd  of;  and,  finallj',  that, 
the  Circuit  Court,  having  full  jurisdiction  in  the  premises^  its  finding 
of  the  fact  of  disobedience  is  not  open  to  review  on  habeas  corjjua  in 
this  or  any  other  court.  Ex  parte  Wat  kins,  3  Pet.  19.3;  Ex  parte 
Yarhrou^h,  110  V.  S.  ().')1;  Ex  parte  Terry,  12S  V.  S.  2H9,  305; 
In  re  Swan,  150  {' .  S.  (VM ;    I'nited  States  r.  Pnd^r<-(.ri,  15.3  V.  S.  48. 

We  enter  into  no  examination  of  tlie  act  of  July  _',  1890,  c.  047,  20 
Stat.  209,  upon  which  the  Circuit  Court  rehed  mainly  to  sustain  its 
jurisdiction.  It  must  not  he  understood  from  this  that  we  dissent 
from  the  conclusions  of  that  court  in  reference  to  the  scop<'  of  the  act, 
but  simply  that  we  prefer  to  rest  our  judgment  on  the  hroader  ground 
which  ha.s  been  discussed  in  this  opinion,  believing  it  of  importance 
that  the  principles  underlying  it  should  l)e  fully  stated  and  affirmed. 

The  petition  for  a  writ  of  habeas  corpus  is  Denied.^ 

CLAYTON  ACT 

Ad  of  Oct.  1.5,  1914,  c.  323,  Sections  G,  20 « 
Sec.  6.    The  labor  of  a  human  being  is  not  a  conunodity  or  article 
of  conunerce.    Nothing  contained  in  the  anti-trust  laws  shall  be  con-         •,  /  '', 

strued  to  forbid  the  existence  and  operation  of  lal)or,  agricultural,         \l]/(\    ' 
or  horticultural  organizations,  instituted  for  the  purpo.ses  of  nmtual         ' 
help,  and  not  having  capital  stock  or  conducted  for  profit,  or  to  for- 
bid or  restrain  individual  mcMubers  of  such  organizations  from  law-  L^*- 
fully  carrying  out    the    legitimate  objects    thereof;    nor  shall  such  \ 
organizations,  or  the  members  thereof,  be  held  or  construed  to  be    \ 
illegal  combinations  or  conspiraci(>s  in  restraint  of  trade,  under  the     /                  ■  ' 
anti-trust  laws. 

Sec.  20.  No  restraining  order  or  injunction  shall  be  granted  by 
any  court  of  the  I'nited  States,  or  a  judge  or  the  judges  thereof, 
in  any  case  between  an  emploj'or  and  employees,  or  between  em- 
ployers and  employees,  or  between  employees,  or  between  persons 
employed  and  persons  seeking  employment,  involving,  or  growing 
out  of,  a  disput(>  concerning  terms  or  conditions  of  employment, 
unless,jieccssaQ'_Jjj_preycMit^2^TC^^^  to  _£irqperty,  or  to  a 

property  right,  of , the  party  making  the  appUcation^  for  which-  ia- 
jury  there  is  no  adequate  remedy-  at  law,  and  such  property  or  prop- 
erty right  nuist  be  described  with  jiarticularity  in  the  application, 
wliich  nuist  be  in  writing  and  sworn  to  by  the  applicant  or  by  his 
agent  or  attorney. 

'  Debs  wa.s  also  procoodcd  against  criiiiinally,  but  tho  prosecution  was  later 
dr()pix>cl.  .St>e  I'nitod  States  r.  Del)s,  t)3  Fed.  430;  United  States  r.  Debs,  t)4  Fed. 
724;  Unitcil  States  v.  Debs,  ().")  Fed.  210. 

With  the  principal  ea.se  niav  be  compared  that  of  United  States  r.  Frank  J. 
Hayes  et  al.,  V.  S.  D.  C,  Ind.,  Nov.  Term,  1019.  In  Equity,  No.  312,  Oct.  31,  1919, 
Nov.  8,  1919.  See  Injunction  Order,  p.  7.57,  infra.  See  a  discussion  of  this  caae 
in  34  H.  L.  R.,  401-407. 

2  U.  S.  Comp.  Stat.s.,  sees.  8S3.5f,  1243d. 


n/ 


/ 


J 


y 


146  FEDERAL  JURISDICTION  [CHAP.  Ill 

^  And  no  such  restraining  order  or  injunction  shall  prohibit  any 
person  or  persons,  whether  singly  or  in  concert,  from  terminating 
any;jelation  of  employment,  or  from  ceasing  to  perform  any  work  or 
labor,  or  frorrT  recommending,  advising,  or  persuading  others  by 
peaceful  means  so  to  do;  or  from  attending  at  anj^  place  where  any 
such  person  or  persons  may  lawfully  be,  for  the  purpose  of  peace- 
fully obtaining  or  communicating  information,  or  from  peacefully 
persuading  any  person  to  work  or  to  abstain  from  working;  or  from 
ceasing  to  patronize  or  to  employ  any  party  to  such  dispute,  or  from 
recommending,  advising,  or  persuading  others  by  peaceful  and  law- 
ful means  so  to  do;  or  from  paying  or  giving  to,  or  withholding  from, 
any  person  engaged  in  such  dispute,  any  strike  benefits  or  other 
moneys  or  things  of  value ;  or  from  peaceably  assembling  in  a  lawful 
manner,  and  for  lawful  purposes;  or  from  doing  any  act  or  thing 
which  might  lawfully  be  done  in  the  absence  of  such  dispute  by  any 
party  thereto;  nor  shall  any  of  the  acts  specified  in  this  paragraph 
be  considered  or  held  to  be  violations  of  any  law  of  the  United  States. 


DUPLEX  PRINTING  PRESS  CO.  v.  DEERING 

Supreme  Court  of  the  United  States.     1921 
254  U.  S.  443 
See  infra,  p.  440,  for  a  report  of  the  case 

THE  UNITED   MINE  WORKERS  v.  THE    CORONADO 

COAL   CO. 
Supreme  Court  of  the  United  States.     1922 
—  U.S.— 
See  infra,  p.  533,  for  a  report  of  the  case. 


CIIAPTKK    IV 

LEGAIJ'IT  OF   ^^KA\S  T'SKI)   BY   LAROR 
ORCJAMZAIIONS 

Section  1 .     The  Strike 

TUBWOMEN  V.   BREWERS  OF  LONDON 

Cited  in  8  M(hI.  10  (1721) 

The  Court.'  Tho  in(lictni(>nt,  it  is  true,  sots  forth,  that  tho  do- 
fciulaiits  refused  to  work  under  the  wa^es  wliich  they  demanded; 
but  although  these  mifiht  l)e  more  than  is  (hreeted  hy  the  statute, 
yet  it  is  not  for  the  refusing  to  work,  hji.t  for  conspiring,  that  they 
are  indicted,  and  a  conspiracy  of  any  kind  is  illegal,  although  the 
matter  about  which  they  conspired  might  liave  been  lawful  for  them, 
or  an^'  of  them,  to  do,  if  they  had  not  conspired  to  do  it,  a^  apjK'ars 
in  the  case  of  The  Tubwomen  v.  The  Brewers  of  London.^ 


Recorder  Levy  in  PHILADELPHIA  CORDWAINERS'  CASE 

Commons  &  Gilmore,  Documentary  History,  Vol.  Ill,  p.  233  (180(5) 

A  combination  of  workmen  to  raise  their  wages  may  be  considered 
in  a  twofold  point  of  view;  one  is  to  benefit  themselves  .  .  .  the 
other  is  to  iniur(>  those  who  do  not  join  their  society.  The  rule  of  law 
condemns  both. 

De  MINICO  v.  CRAIG 

Supreme  Judicial  Court  of  Massachusetts.     1011 

207  Mass.  593 

LoRiNG,  J.  This  bill  is  brought  by  a  member  of  the  Milford  Branch 
of  the  CJranite  Cutters'  International  As.sociation  of  America  against 
the  president  and  secretary  of  the  a«sociation  and  certain  members 
of  it  who  const  tutcd  its  adjustment  committee.  The  plaintitT  seeks 
to  liave  the  defendants  enjoined  from  combining  against  his  em- 

'  Extniot  from  tho  opinion  in  Rox  r.  .lournovmon  Tailors  of  C.imbridur,  8 
Mod.  10. 

-  An  oxliauslive  search  ha.-^  failod  to  reveal  in  the  reports  any  such  eaj^c  jis 
Tubwomen  v.  Brewers  of  Ixindon,  here  referred  to  hut  without  citation  or  n*fer- 
ence.  Many  have  dout)ted  its  existence.  It  has  lxH«n  Konerally  eonjectun-d  that 
the  ease  thus  referred  to  is  King  v.  SterhnR,  1  I^ev.  12."),  1  Sici.  174,  1  Kel>.  r>.")0. 
See  Yates  Select  (N.  Y .)  Cases,  pj).  ICl,  211.  212.  The  ca.*je  is  di.sru.ss«>d  in  3 
Ck)luinbia  Liiw  Review,  447. 

147 


148  LEGALITY   OF   MEANS   USED  [CHAP.  IV 

ployment  as  a  foreman  by  Wells  Brothers,  and  for  damages.  The 
case  went  to  a  master  and  is  before  us  on  his  report. 

The  plaintiff  and  one  Ardolino  had  been  employed  by  Wells  Broth- 
ers as  the  foremen  of  their  stone  quarry  at  Hopkinton  since  ]\Iarch, 
1909  (when  work  was  begun  there  to  furnish  the  stone  for  a  building 
in  process  of  erection  in  Boston),  until  the  matters  here  complained 
of  took  place  in  the  following  June.  On  the  evening  of  June  22,  1909, 
the  Milford  Branch  of  the  association  voted  to  refuse  to  continue  at 
work  under  the  plaintiff  and  Ardolino  as  foremen,  and  pursuant  to 
that  vote  none  of  the  men  employed  by  Wells  Brothers  went  to  work 
on  June  23,  the  next  day.  A  meeting  was  had  between  Wells  Broth- 
ers and  the  adjustment  committee  of  the  association  on  that  next  day, 
June  23,  and  the  result  of  it  was  an  agreement  between  Wells  Broth- 
ers and  the  officers  of  the  association  by  which  the  men  went  back  to 
work  on  the  following  day,  June  24,  and  the  plaintiff  and  Ardolino 
were  removed  as  foremen  on  Saturday  night,  June  26.  The  plaintiff 
thereafter  worked  as  a  journeyman  for  Wells  Brothers  until  January 
10,  1910,  when  work  at  the  quarry  ceased. 

The  occasion  for  the  strike  was  a  discharge  or  a  supposed  discharge 
by  the  plaintiff  of  one  Tronconi  on  the  morning  of  June  22.  There 
was  a  rule  of  Wells  Brothers  forbidding  the  men  to  enter  the  black- 
smith shop.  On  the  day  in  question  Tronconi  went  into  the  black- 
smith shop  to  get  some  tools  which  were  being  sharpened  for  him  and 
was  ordered  out  by  Ardolino,  the  other  foreman.  Later  the  plaintiff 
gave  Tronconi  some  instructions  which  Tronconi  understood  to  mean 
that  he  was  discharged.  But  the  plaintiff  always  denied  that  he  in- 
tended to  discharge  Tronconi.  Thereupon  on  the  same  day  the  pres- 
ident and  two  members  of  the  adjustment  committee  of  the  asso- 
ciation had  a  conference  with  the  plaintiff  and  Tronconi.  At  this 
conference  Tronconi  insisted  that  he  had  been  unjustly  discharged, 
the  plaintiff  denied  that  he  had  discharged  him  at  all,  and  told  him  to 
go  back  to  his  work.  The  meeting  of  the  association  was  held  on  the 
evening  of  that  day,  the  strike  followed  the  next  day  and  was  ended 
by  the  agreement  reached  on  the  afternoon  of  the  second  day,  as  we 
have  already  stated. 

We  pass  by  certain  findings  made  by  the  master  on  issues  raised 
by  the  pleadings  which  have  now  become  immatei-ial,  and  come  to 
his  finding  on  the  only  issue  now  in  dispute,  namely,  Was  the  strike 
for  a  justifiable  purpose? 

The  master  begins  the  part  of  his  report  in  which  that  question  is 
considered  with  this  finding:  "I  find  .  .  .  that  the  respondents  in 
securing  his  [the  plaintiff's]  removal  were  actuated  by  personal  ob- 
jections some  of  them  had  against  his  continuance  in  the  office  of 
foreman."  .  .  . 

The  master's  further  findings  on  this  point  are  in  substance  as 
follows:  "While  it  is  probal)le  that  the  complainant  made  some 
minor  mistakes,  I  am  of  the  opinion  that  his  work  as  foreman  was 


SECT.  I]  THE   STRIKE  149 

acceptable  to  Wells  Brothers  Co.,  and  that  he  was  sufficiently  com- 
petent to  fill  the  position  to  the  satisfa(;tion  of  the  company.  No 
workmai»  lost  any  pay  or  otherwise  sulTcrcd  any  actual  damage  hy 
reason  of  any  nuslakes  nmde  l)y  the  ccjmplainant.  In  regard  to  the 
enforcement  of  the  rules,  I  find  tiiat  the  rules  were  established  l)y 
the  company,  and  tiiat  it  was  the  duty  of  the  complainant  as  fore- 
man to  see  that  they  were  enforced.  I  am  of  the  opinion  that  the 
real  complaint  of  the  inujority  of  the  men  claiming  to  have  a  griev- 
ance against  the  eomplainant  ami  his  fellcjw  foreman  v\j"d<jlin(j,  was 
Ixjcause  of  their  enforcement  of  these  rules,  and  that  they  did  enforce 
them  more  strictly  than  the  men  had  been  accustomed  to  having 
them  enforced."  The  master  then  states  the  attempts  made  by  the 
plaintifT  and  Ardolino  to  enforce  the  rules  of  their  employers,  Wells 
Brothers.  He  finds  that  they  (1)  luul  attempted  to  have  the  rule 
against  going  to  the  blacksmith  shop  strictly  enforced;  (2)  to  stop 
th?  men's  knocking  off  work  a  few  minutes  before  the  working  day 
ended;  (3)  to  stop  their  using  the  compressed  air  to  brush  their 
clothes;  and  (4)  in  one  instance  to  stop  a  man's  eating  his  luncheon 
during  working  hours.  .  .  .  The  master  finds  "that  the  strike  was 
instigated  by  a  comparatively  few  men  who  were  successful  in  in- 
ducing other  members  to  adopt  their  suggestions  and  join  them  in 
their  purpose  to  secure  the  complainant's  removal  as  fonMuan,  al- 
though they  testifi(>d  that  their  purpose  was  to  secure  l)etter  con- 
ditions." We  interpret  this  to  be  a  finding  that  the  purpose  of  this 
strike  was  not  to  "secure  better  conditions"  for  the  workmen  as 
distinguished  from  a  purpose  to  get  rid  of  a  foreman  who  was  dis- 
liked by  some  of  the  employees.  To  conclude  the  statement  of  the 
master's  findings  on  the  purpose  of  the  strike  he  found  that  the  rea- 
sons "for  their  dislike  or  objection"  to  the  plaintiff  and  Ardolino 
were  "trivial"  and  would  not  have  received  any  consideration  had 
it  not  been  for  the  existence  of  the  present  case;  and  that  these  reii- 
sons  "dislike  and  objection"  were  founded  on  a  feeling  of  grievance 
because  of  the  "enforcement  of  these  rules  .  .  ,  more  strictly  than 
the  men  had  been  accustomed  to  having  them  enforced." 

Whether  the  purpose  for  which  a  strike  is  institutetl  is  or  is  not  a 
legal  justification  for  it,  is  a  question  of  law  to  be  decided  by  they    '\j         i' 
court.    To  justify  interference  with  the  rights  of  othei-s  the  strikers  N/v**-**^ 
must  in  good  faith  strike  for  a  purpose  which  the  court  decides  to  l)ey    I,  .CIa' 
a  legal  justification  for  such  interference.    To  make  a  strike  a  legal  \     \ 
strike  it  is  necessary  that  the  strikers  should  have  ai't(>d  in  gooil  faith 
in  striking  for  a  purpose  which  the  court  holds  to  have  been  a  legal 
purpose  for  a  strike,  but  it  is  not  necessary  that  they  should  have 
been  in  the  right  in  instituting  a  strike  for  such  a  purpo.se.    On  the 
other  hand  a  strike  is  not  a  strike  for  a  legal  |iurjM>se  because^  the 
strikers  struck  in  gootl  faith  for  a  jiurpose  which  they  thought  wa."*  a 
sufficient  justification  for  a  strike.   As  we  have  said  already,  to  make 
a  strike  a  legal  strike  the  purpose  of  the  strike  must  be  one  whicli  the 


y 


150  LEGALITY   OF   MEANS   USED  [CHAP.  IV 

court  as  matter  of  law  decides  is  a  legal  purpose  of  a  strike,  and  the 
strikers  must  have  acted  in  good  faith  in  striking  for  such  a  purpose. 

The  purpose  of  the  strike  here  in  question  has  been  found  to  have 
been  to  get  rid  of  two  foremen  because  some  of  the  workmen  had 
personal  objections  to  and  a  dislike  for  them.  Or,  to  use  the  words 
of  their  own  counsel,  because  these  foremen  were  "distasteful  to 
[some  of]  the  employees."  We  are  of  opinion  that  that  is  not  a  legal 
purpose  for  a  strike.  The  plaintiff  had  a  right  to  work  and  that  right 
of  his  could  not  be  taken  away  from  him  or  interfered  with  by  the 
defendants  unless  it  came  into  conflict  with  an  equal  or  superior 
right  of  theirs.  The  defendants'  right  to  better  their  condition  is 
such  an  equal  right.  But  to  humor  their  personal  objections,  their 
likes  and  dislikes,  or  to  escape  from  what  "is  distasteful"  to  some  of 
them  is  not  in  our  opinion  a  superior  or  an  equal  right. 

It  is  doubtless  true  that  in  a  certain  sense  the  condition  of  work- 
men is  better  if  they  work  under  a  foreman  for  whom  they  do  not 
have  a  personal  dislike,  that  is  to  say,  one  who  is  not  "distasteful" 
to  them.  But  that  is  not  true  in  the  sense  in  which  those  words  are 
used  when  it  is  said  that  a  strike  to  better  the  condition  of  the  work- 
men is  a  strike  for  a  legal  purpose.  One  who  betters  his  condition 
onh'  by  escaping  from  what  he  merely  dislikes  and  by  securing  what 
he  hkes  does  not  better  his  condition  wdthin  the  meaning  of  those 
words  in  the  rule  that  employees  can  strike  to  better  their  condition. 

The  defense  in  the  case  at  bar  has  not  failed  because  a  strike  to 
get  rid  of  a  foreman  never  can  be  a  strike  for  a  legal  purpose.  We 
can  conceive  of  such  a  case.  If,  for  example,  a  foreman  was  in  the 
habit  of  using  epithets  so  insulting  to  the  men  that  they  could  not 
maintain  their  self  respect  and  work  under  him,  a  strike  to  get  rid  of 
him  in  our  opinion  would  be  a  legal  strike.  It  is  not  necessary  in  the 
case  at  bar  to  define  such  cases  and  lay  down  their  limits.  It  is  wiser, 
in  our  opinion,  in  matters  such  as  we  are  now  dealing  with,  to  go  no 
farther  than  to  decide  each  case  as  it  arises.  What  we  have  just  said 
is  said  to  prevent  misapprehension  as  to  what  is  now  decided.  What 
we  now  decide  is  that  a  strike  to  get  rid  of  a  foreman  because  some^ 
the  employees  have  a  dislike  for  him  is  not  a  strike  for  a  legal  pur- 
pose. 

For  these  reasons  a  majority  of  the  court  arc  of  opinion  that  the 
strike  was  not  a  legal  one.  .  .  . 

PARKINSON  CO.  v.  BUILDING  TRADES  COUNCIL 

Supreme  Court  of  California.     1908 

154  Cal.  581 

Beatty,  C.  J.'    This  is  a  suit  to  enjoin  an  alleged  boycott.    The 

plaintiff  is  the  owner  and  proprietor  of  a  lumber  yard  at  Palo  Alto 

in  Santa  Clara  County,  and  also  of  a  jilumbing  and  tinning  shop> 

'  Only  a  small  portion  of  the  opinion  is  given.  — Ed. 


SECT.  I]  THE    STRIKE  lol 

mill,  (;tc.  It  buys  and  sells  lumber,  IjuildiiiK  inatoriaLs,  and  hard- 
ware, and  einplcjys  laborers,  teamsters,  and  mechanics.  The  jirin- 
cipal  defenthint,  the  BuihhnK  Trades  Council,  is  a  vohmtary  associa- 
tion composed  of  dt-lctjates  from  various  labor  unions  of  Santa  ( "hira 
County,  rin'  otiier  defendants  are  labor  unions  compos<'d  of  arti- ' 
sans  enji;am'd  in  the  various  crafts  concerned  in  building  ojx'ratioiLS, 
the  offi(;ers  of  th(>  council  and  of  the  several  unions  and  a  lar^*'  numlx?r  vv 
of  members  of  said  unions.   .   .   . 

.\  preliminary  injunction  was  issued  and  the  cau.'^e  sul).«e(|ucntly 
tried  by  the  court.  .  .  .  The  findings  were  in  favor  of  tlie  plaintiff, 
and  by  the  judsuieut  and  decree  of  the  c()urt.  the  defendants,  all 
and  each  of  them,  were  enjoined.  .  .  .  There  was  also  a  judjrment 
for  one  dollar  damay;es  and  costs  taxed  at  8304.2').   .   .   . 

[The  defendants']  combination  and  conspii-acy,  if  it  can  be  caljeij 
a  conspiracy,  was  not  inspired  1>\  any  malicious  i)urpo.se  or  feeling 
against  the  plaintifT;  it  embraced  the  world  at  larfje  and  consisted 
wholly  in  an  afj;r(>(Mnent  to  which  all  the  memlKMs  were  pledjjed  that 
they  would  refuse  to  work  for  any  p(u*son  or  firm  who  emf)loyed  non- 
union men,  and  that  they  would  refuse  to  work  ujK)n  or  handle  any 
material  supplied  by  an  employer  of  non-union  men.  They  were,  in 
other  words,  orjijanizcul  for  the  purpose  of  enforcing  in  Santa  f 'lara 
County  what  is  known  as  the  "  closed  shop,"  and  the  means  by  which 
they  proposed  to  accomplish  their  object  was  to  bind  them.selves  by 
a  mutual  pledge  to  (}uit  working  for  any  one  who  should  l>e  declared 
"unfair,"  either  because  he  employed  non-union  men,  or  because  he 
required  th(>m  to  handle  material  supplied  by  an  employer  f)f  such 
men.  This  being  the  situation  on  the  first  of  February.  1904,  the 
plaintiff  corporation,  which  seems  to  have  been  conducting  its  busi- 
ness under  .some  understanding  with  the  council,  to  the  effect  that 
it  would  employ  only  union  men,  set  some  non-union  men  to  work 
erecting  sheds  in  its  luml)er  yard  at  Palo  Alto.   .   .   . 

PlaintifT  was  then  declared  "unfair"  and  on  the  following  day 
the  business  agent  went  upon  plaintiff's  premises  and  notified  his 
union  employees  of  that  fact,  reminding  some  of  them  of  their  pledge 
to  quit  work  for  any  employer  declared  "unfair."  He  also  mailed  or 
delivered  notices  to  all  the  contractors  of  Palo  Alto  employing  union 
men  as  follows: 

"San  Jose,  February  10th.  1904. 
"To  all  whom  it  may  concern: 

"You  are  hereby  notified  that  .1.  F.  Parkinson  ("o.  has  l)ecn 
placed  on  the  unfair  list  of  the  Building  Trades  Council  of  Santa 
Clara  County.  .\nd  union  men  cannot  work  for,  or  handle  any  ma- 
terial fuinished  by  said  Parkinson  until  further  notice." 

"Building  Trades  Council, 
"Per  Chas.  II.  Harri.son,  Secretary." 

The  effect  of  these  notices  was  that  all  the  union  employees  of 

plaintiff  (juit  work  and  its  mill  was  closed  at  noon  on  the  tenth  day 


lo2  LEGALITY    OF    MEANS    USED  [CHAP.  IV 

of  February,  remaining  closed  until  it  secured  a  crew  of  non-union 
men.  And  most  of  the  contractors  who  had  formerly  purchased 
building  material  from  plaintiff  ceased  to  deal  with  it  upon  receipt 
of  the  written  notice  addressed  to  them.  .  .  , 

All  of  the  men  who  quit  the  employment  of  plaintiff  and  of  those 
contractors  who  disregarded  the  unfair  notice  did  so  peaceablj^  and 
quietly.  There  'was  no  force,  no  threat,  no  violence  or  intimidation 
used  against  them  aside  from  the  reminder  addressed  to  one  or 
two  individuals  of  their  obligation  to  their  respective  unions.  There 
was  no  force,  violence,  threat  or  intimidation  used  towards  the  non- 
union men  employed  in  place  of  the  strikers,  and  no  attempt  to  ob- 
struct the  plaintiff  in  his  efforts  to  secure  non-union  men.  There 
was  not  at  any  time  any  picketing  of  the  plaintiff's  premises  or  in- 
terference with  its  customers.  The  most  serious  act  proved  against 
the  council  was  that  its  business  agent  in  the  course  of  the  dispute 
over  the  Waterman  affair  told  Mr.  Parkinson  that  they  —  the  coun- 
cil —  would  drive  him  out  of  business  if  he  refused  to  observe  their 
rules.  This,  however,  was  merely  an  expression  of  the  business 
agent's  opinion  of  the  effect  of  declaring  the  plaintiff  unfair;  it  was 
a  warning,  a  caution,  intended  no  doubt  to  force  compliance  with 
the  council's  demands,  but  evidently  it  did  not  have  that  effect, 
for  Mr.  Parkinson  being  of  a  different  opinion  stood  his  ground  and 
accepted  the  consequences.  .  .  . 

We  may,  therefore,  in  the  further  consideration  of  this  case 
confine  our  attention  to  what  the  defendants  did  and  thi'eatened 
to  do,  and  to  the  simple  question  whether  those  things  were  or  were 
not,  in  themselves,  lawful.  The  general  objects  of  the  union  and 
the  council  being  lawful,  if  they  used  no  unlawful  means  for  their 
attainment,  the  motives  which  inspired  their  action  in  this  case  are 
irrelevant  to  the  question  of  conspiracy  and  immaterial  as  affecting 
the  cause  of  action. 

As  to  what  are  lawful  acts  in  furtherance  of  such  objects  as  were 
proposed  by  the  defendants  in  this  case,  the  consensus  of  recent 
judicial  opinion,  above  referred  to,  cannot  be  better  illustrated  than 
by  quoting  the  propositions  upon  which  the  majority  and  the  mi- 
nority of  the  New  York  court  of  appeals,  despite  their  opposite 
conclusions  in  National  Protective  Association  v.  Cummings,  were 
entirely  agreed.  Chief  Justice  Parker  at  the  outset  of  his  opinion 
(170  N.  Y.,  p.  320)  [63  N.  E.  369,  88  Am.  St.  Rep.  648],  says:  "I 
shall  assume  that  certain  principles  of  law  laid  down  by  Judge  Vann 
are  correct,  namely:  '  It  is  not  the  duty  of  one  man  to  work  for  an- 
other unless  he  has  agreed  to,  and  if  lie  has  so  agreed  but  for  no  fixed 
period,  either  may  end  the  contract  whenever  he  chooses.  The  one 
may  work,  or  refuse  to  work,  at  will,  and  the  other  may  hire  or  dis- 
charge at  will.  The  terms  of  employment  are  subject  to  mutual 
agreement,  without  let  or  hindrance  from  any  one.  If  the  terms  dg 
not  suit,  or  the  employer  does  not  please,  the  right  to  quitj^^abso- 


1t*^^>^ 


SECT.  I]  THE    STRIKE  153 

lute,  and  no  ono  may  dcrnaiul  a  reason  therefor.    Whatever  one  man 
may  do  alone,  he  may  <Io  hi  comljination  with  others,  provided  they 
have  no  uidawful  objeet  in  view.    Mere  numbers  do  lujt  onhnarily 
affect  the  (juahty  of  the  act.    VVorkiiiKnien  have  the  rij^ht  to  organize/ 
for  the  purpose  of  securing  higher  wages,  shorter  hours  of  labor  or)  r 
improving  their  relations  with  their  employers.    They  liave  the  right  )  \  y-^ 
to  strike;    that  is,  to  cease  working  in  a  body  by  pre-arrangement  J  V  y 
until  a  grievance  is  redressed,  provided  the  object  is  not  to  gratify  i    / 
mahcc  or  inflict  injury  upon  others,  but  to  secure  Ix-tter  terms  of) 
employment  for  themselves.    A  peaceable  and  ordinary  strike,  not  I 
to  harm  others,  but  to  improve  tluMr  own  conditif)n,  is  not  in  viola-  \ 
tioii  of  law.'  " 

'This  is  a  most  conservative  statement  of  the  law.  It  embraces 
nothing  that  is  not  conceded  at  this  day  by  even  the  most  deter- 
mined opponents  of  the  principle  of  the  strike,  and  contains  in  the 
concluding  sentence  a  (pialification  which  the  rule  of  Boyson  v.  Thorn' 
would  compel  us  to  disregard.  In  case  of  a  peaceable  and  ordinary 
strike,  without  breach  of  contract,  and  conducted  \\ithout  violence, 
threats,  or  intimidation,  this  court  would  not  inquire  into  the  mo- 
tives of  the  strikers  —  their  acts  being  cntireh'  lawful,  their  motives^ 
would  b(>  held  immaterial.  But  taking  the  doctrine  as  stated  by 
Justice  \  anil  with  all  its  (lualifications,  it  suffices  for  the  decision  of 
everything  of  real  importance  in  the  present  controversy,  so  far  as 
the  council  and  its  constituent  unions  are  concerned.  The  rule  that 
their  members  could  not  work  with  non-union  men,  or  handle  ma- 
terial supplied  by  an  employer  of  non-union  men,  was  adopted  \ye- 
fore  any  dift'erence  had  arisen  between  them  and  th(>  plaintiff  or  its 
manager.  It  was  a  rule  which  they  supposed  would  benefit  them, 
and  that  was  its  sole  purpose.  Whatever  others  may  think  of  the 
policy  or  justice  of  such  a  rule,  that  is  a  matter  outside  the  province 
of  the  courts,  and  as  with  regard  to  other  questions  of  economic  or 
political  aspect,  the  remedy,  if  a  remedy  is  needed,  must  be  found  by 
the  legislature.  In  the  meantime,  and  for  present  purposes,  we  must 
recognize  the  fact  that  this  nile,  as  established  by  the  council  and  the 
affiliated  unions,  Wiis  devised  for  the  promotion  of  an  object  (-(Mtainly 
not  unlawful,  that  the  occasion  which  called  for  its  application  was 
the  voluntary  act  of  plaintiff's  agent,  and  that  with  two  or  three 
possible  exceptions  to  be  hereafter  noticed,  the  defendants  did  noth- 
ing unlawful  in  their  attempt  to  make  it  effective. 

Certainly  it  was  not  unlawful  to  call  out  the  union  men,  and  it  was 
not  unlawful  for  the  men  to  cease  work  which  th(\v  wimc  l)<)und  by  no 
contract  to  continue.  .   .  . 

For  the  reasons  above  stated  the  judgment  of  the  Superior  Court 
is  reversed. 

»  98  Cal.  578;  infra,  p.  244. 


154  LEGALITY   OF   MEANS   USED  [CHAP.  IV 

Section  2.     Inducing  Breach  of  Contract.  Enticement  of  Servants 

ORDINANCE  OF  LABOURERS 

23  Edw.  Ill,  c.  2  (1349) 

Item,  If  any  reaper,  mower,  or  other  workman  or  servant,  of  what 
estate  or  condition  that  he  be,  retained  in  any  man's  service,  do 
depart  from  the  said  service  without  reasonable  cause  or  Hcence, 
before  the  term  agi-eed,  he  shall  have  pain  of  imprisonment.  And 
that  none  under  the  same  pain  presume  to  receive  or  to  retain  any 
such  in  his  service.^ 


ANONYMOUS' 

Common  Pleas.     1409 

Year  Book,  11  Henry  IV,  f.  23,  pi.  46 

Thomas  Frome  brings  a  writ  of  trespass  at  common  law  against 
the  defendant  for  his  close  broken,  and  one  J.  his  servant  taken  out 
of  his  service.  .  .  . 

Tremain  [for  the  defendant].  ...  As  to  the  servant,  we  found 
him  wandering  in  a  certain  place  in  another  county;  and  there  he 
came  and  offered  his  service  to  us,  and  made  covenant  with  us  to 
serve  us.  .  .  . 

Skrene  [for  the  plaintff].  He  has  admitted  that  the  servant  was  in 
our  service,  and  that  he  has  received  him  into  his  service;  and  so  he 
has  admitted  our  action,  and  we  pray  judgment,  and  that  he  be 
attainted. 

Hankford  [J.].'  When  the  servant  was  wandering,  if  the  defend- 
ant had  not  cognizance  that  he  was  in  your  service  then  this  first 
receiver  cannot  be  adjudged  a  wrong  done  by  the  defendant,  but  by 
the  servant. 

And  then  Skrene  said,  that  the  same  servant  made  a  covenant 
with  him  [the  plaintiff]  to  serve  him  in  the  office  of  "Berchier"  *  for 
an  entire  year,  during  which  year  he  [the  defendant]  procured  our 
servant  to  leave  our  service  by  force  of  which  procurement  he  left 
our  service  during  the  same  year  and  he  [the  defendant]  retains  him 
in  his  service;  which  matter  we  wish  to  aver,  and  demand  judg- 
meat.  .  .  . 

'  For  a  brief  discussion  of  the  nature  of  the  action  arising  under  this  statute 
and  of  the  later  development  of  the  law,  see  Wigmore,  John  H.,  Interference  with 
Social  Relations,  21  Am.  L.  Rev.,  pp.  764  et  seq. 

^  Part  of  the  ca.se  is  omitted.  —  Ed. 

'  William  Hankford,  .Justice  of  the  Common  Pleas,  May  6,  1398.  Appointed 
Chief  .Justice  of  I<]ngland  on  Jan.  29,  1414.  J^or  a  brief  biographical  account,  see 
Foas,  Judges  of  lOngland,  vol.  4,  p.  323.  —  Ed. 

*  I.  e.,  shepherd.  — Ed. 


SECT.  II]  INDUCING  BREACH    OF   CONTRACT  155 

Hill  [J.].'  Ilis  writ  of  trespass  as  to  the  servant  d(>es  not  lie  u\K)n 
the  matter  shown;  for  the  plaintiff  says  that  the  defendant  did 
nothirifi;  hut  to  j)rocure  the  servant  to  leave  his  (the  [)laintiff's]  serv- 
ice, hy  which  procurement  he  left  his  service,  and  was  retained  with 
the  defendant,  in  which  case  action  on  the  Statute  of  Lalwurers  is 
given,  and  not  this  action. 

Skrene.  If  a  man  procures  my  servant  to  leave  my  service  and 
retains  him  upon  that,  he  does  me  wrong. 

Hanki'oui)  [J.j  and  Mill  [J.].  It  is  evident  that  he  does  you  wrong; 
but  you  sliall  not  have  any  remedy  on  such  manner  of  writ  as  this 
is.  .  .  . 

CuLPEPKU  [J.].-  This  action  is  taken  upon  an  action  at  comnion 
law  as  it  was  before  the  Statute  of  Lal)ourers;  and  tiie  actions  which 
existed  at  common  law  Ijefore  the  same  Statute  of  Labourers  were  not 
abolished  by  this  statute.  And  if  a  man  procures  and  abets  my  serv- 
ant to  go  with  him  in  his  service,  action  at  common  law  lies  well 
enough. 

Hill  [J.].  No  certes,  action  at  conunon  law  of  trespass  does  not  lie 
in  such  a  case;  for  such  a  procurement  cannot  be  said  in  any  way  to 
go  against  the  peace.  .  .  .^ 

BLAKE  V.  LANYON 

King's  Bench.     1795 

6  Term  Reports,  221 

The  first  count  in  the  declaration  stated  that  the  plaintiff,  who 
was  a  currier,  had  hired  and  retained  W.  Hobbs  to  be  his  servant  and 
journeyman,  etc.,  and  that  the  defendant  persuaded  and  enticed 
Hobbs  to  leave  his  service,  etc.  In  the  second  count  it  was  alleged 
that  Hobbs,  while  he  was  so  hired  and  employed  by  the  plaintiff  in 
his  trade  as  such  servant,  etc.,  wilfully  and  without  the  leave  or 
licen>^e  and  against  the  will  of  the  plaintiff,  (l(>parted  and  absented 
himself  from  and  left  the  service  of  tlic  plaintilT,  etc.,  and  then  and 
there  went  to  the  defendant ;  yet  the  defendant  well  knowing  Hobbs 
to  be  the  servant  of  the  plaintiff,  and  to  have  been  and  to  be  so  re- 
tained, hired,  and  employed  by  the  plaintiff,  etc.,  but  contriving, 
etc.,  "did  then  and  there  receive  and  harbour  the  said  W.  Hobbs, 

'  RolxTt  Hill,  appointed  Justice  of  the  Common  Plea.s  on  May  14,  140S.  For 
a  brief  hionrapliical  account,  see  Foss,  JuiIkcs  of  Knpland,  vol.  4,  p.  326.  —  ICi>. 

*  John  CoIepeiKT,  aj)pointed  Ju.stice  of  the  Common  Plea.s  on  June  7,  1406. 
For  a  brief  bi()Kra|)hioal  account,  sec  Foi^s,  Judges  of  England,  vol.  4,  f).  202. —  Kd. 

'  The  remainder  of  the  ca.se  is  omitted.  Tihrninu  [C.  J.]  i)roc(M'ded  to  <lni\v  a 
distinction  lietween  where  a  servant  goes  out  of  another's  .sorvi<'e  and  where  he  i.s 
taken  out.  "ThirniuK  admits  that,  before  the  statute,  if  a  s(^rvant  kth/  out  of  the 
service  no  action  lay,  tint  if  he  was  taken  trespass  did;  and  then  contends  that  the 
proniring  in  the  case  at  bar  was  a  taking  and  made  the  party  K^ilty  of  trespa-ss; 
in  which  he  was  clearly  wrong." —  Per  Coleridge,  J.,  m  Lumley  v.  Gye,  2  El.  &  Bl. 
2 It),  258.  —  Ed. 


156  LEGALITY   OF   MEANS   USED  [CHAP.  IV 

and  did  then  and  there  retain,  keep,  and  employ  the  said  Hobbs  in 
his  (defendant's)  said  service,  and  wholly  refused  to  deliver  him  to 
the  plaintiff  his  master,"  although  requested,  etc.,  and  unlawfully 
detained,  entertained,  and  kept  the  said  Hobbs,  so  then  being  the 
servant  and  journeyman  of  the  plaintifif,  in  his  (the  defendant's) 
service,  etc.,  whereby,  etc.  At  the  trial  at  the  last  Launceston  assizes 
it  appeared  that  Hobbs,  who  was  retained  by  the  plaintiff  to  work  by 
the  piece,  left  the  plaintiff's  service  on  a  dispute  between  them,  the 
plaintiff  having  beaten  him;  that  at  the  time  of  his  departure  he  had 
some  work  in  hand;  that  he  then  apphed  for  work  t  o  the  defendant, 
who  was  also  a  currier,  and  who  emplo3'ed  him,  not  knowing  of  his 
engagement  with  the  plaintiff;  but  that  in  the  course  of  a  few  days 
afterwards  the  defendant,  having  been  apprised  by  the  plaintiff  that 
Hobbs  was  his  servant,  and  had  left  his  work  unfinished,  and  being 
threatened  with  an  action  in  case  he  continued  to  employ  Hobbs, 
requested  the  servant  to  return  to  his  former  master  and  finish  his 
work:  this  Hobbs  refused,  and  the  defendant  continued  hmi  in  his 
service.  No  evidence  being  given  in  support  of  the  first  count,  it 
was  objected  on  behaK  of  the  defendant  that  the  action  could  not 
be  supported  on  the  second  count,  because  it  either  imported  that 
the  defendant  had  retained  Hobbs  in  his  service,  knowing  him  to  be 
the  servant  of  the  plaintiff,  which  was  not  established  in  proof,  or 
that  he  merely  continued  Hobbs  in  his  service  after  he  had  notice  of 
Hobbs's  engagement  with  the  plaintiff,  for  which  no  action  could  be 
maintained,  it  appearing  that  the  defendant  did  not  know  that  Hobbs 
was  the  plaintiff's  servant  at  the  time  he  first  employed  him.  But 
Mr.  J.  Lawrence,  before  whom  the  case  was  tried,  overruled  the 
objection,  saying  that  the  plaintiff  might  recover  upon  the  second 
count,  if  the  jury  were  of  opinion  that  the  defendant  continued  to 
employ  Hobbs  after  he  knew  that  Hobbs  was  the  plaintiff's  servant. 
The  jury  having  given  a  verdict  for  the  plaintiff; 

Gibbs  now  renewed  his  objection,  and  moved  either  to  enter  a 
non-suit,  or  to  arrest  the  judgment;  stating  that  great  inconven- 
iences would  result  from  a  determination  against  the  defendant, 
for  that  in  such  a  case  a  person  engaged  in  a  great  manufacture  might 
be  deprived  of  the  benefit  of  the  service  of  a  journeyman,  whom  he 
had  retained  to  do  a  particular  piece  of  work,  not  knowing  at  the 
time  of  hiring  that  the  journeyman  was  under  any  engagement  with 
any  other  master,  ])efor(;  the  servant  had  finished  his  work,  and  at  a 
moment  when  the  materials  then  in  work  might  be  totally  spoiled 
if  left  in  an  unfinished  state.  And  he  cited  Adams  v.  Bafeald,  1  Leon. 
240,  where  it  was  held  l^y  Tanfield,  J.,  and  F(mner,  J.,  against  the 
opinion  of  Gawdy,  J.,  that  an  action  does  not  lie  for  retaining  the 
servant  of  another,  unless  he  procure  the  servant  to  leave  his  first 
master. 

Sed  per  Curiam.  An  action  will  lie  for  receiving  or  continuing  to 
cmi)loy  the  servant  of  another  after  notice,  without  enticing  him 


SECT.  II]  INDUCING  BREACH    OF   CONTRACT  157 

away.  Here  no  fault  could  b<'  imputed  t(j  the  defendant  for  taking 
Hobb.s  into  his  .service  in  the  first  instance,  Ix-cau-se  then  he  had  no 
notice  of  Hobbs's  prior  engagement  witli  the  plaintifT:  but  a.s  soon 
as  he  had  notice  of  that  fact,  he  ought  to  have  discharged  him.  A 
person  who  contracts  witli  another  U)  do  certain  W(trk  for  him  is  the 
servant  of  that  other  till  tlie  work  is  finished,  and  no  other  jx-rson  can 
employ  such  servant  to  the  prejudice  of  the  first  master;  the  very 
act  of  giving  him  employment  is  affording  him  the  means  of  keeping 
out  of  his  former  service.  Uule  nfwted. 

LUMLEY  V.  GYE 

Queen's  Be.ncii.     1853 

2  El.  A  Dl.  216 

Crompton,  J.  The  declaration  in  tliis  case  consi.sted  (jf  three 
counts.  The  two  first  stated  a  contract  between  the  plaintiff,  the 
proprietor  of  the  Queen's  Theatre,  and  Miss  Wagner,  for  the  per- 
formance by  her  for  a  periotl  of  three  months  at  the  plaintiff's  theatre; 
and  it  then  stated  that  the  defendant,  knowing  the  premises  and 
with  a  malicious  intention,  whilst  the  agreement  was  in  full  force, 
and  before  the  expiration  of  the  period  for  which  Miss  Wagner  was 
engaged,  wrongfully  and  maliciously  enticed  and  procured  Mi.ss 
Wagner  to  refuse  to  sing  or  perform  at  the  theatre,  and  to  depart 
from  and  abandon  her  contract  witli  X\\v  plaintiff  and  all  service 
thereunder,  whereby  Mi.ss  Wagner  wrongfully,  during  the  full  ix'riod 
of  the  engagement,  refused  and  made  default  in  performing  at  the 
theatre;  and  .special  damage  arising  from  the  breach  of  Miss  Wag- 
ner's engagement  was  then  stated.  The  third  count  stated  that 
Miss  Wagner  had  been  hired  and  engaged  by  the  jilaintiff,  then 
being  the  owner  of  Her  Majesty's  Theatre,  to  perform  at  the  said 
theatre  for  a  certain  specified  period  as  the  dramatic  artiste  of  the  ^ 
plaintiff  for  reward  to  her  in  that  behalf,  and  had  become  and  was       \    '  ,1  ] 

such  dramatic  artiste  for  the  plaintiff  at  his  said  theatre  for  profit         Q  j [/^ 

to  the  plaintiff  in  that  behalf;   and  that  the  defendant,  well  knowing       Xa/^ 
the  premises  and  with  a  malicious  intention,  whilst  Mi.ss  Wagner       v^ 
was  such  arti.ste  of  the  plaintiff,  wrongfully  and  maliciou.sly  enticed  ^.f^, 

and  procured  her,  so  being  such  artiste  of  the  plaintiff,  to  depart  ^  / 

from  and  out  of  the  said  employment  of  the  plaintift",  whereby  she 
wrongfully  departed  from  and  out  of  the  said  service  and  employ-  '■  \ 

ment  of  the  plaintiff,  and  remained  and  continued  absent  from  such  '^  ' 

service  and  (Miiployment  until  the  (>\piration  of  her  said  hiring  and 
engagement  to  the  plaintiff"  by  effluxion  of  time;  and  special  damage 
arising  from  the  breach  of  Mi.><s  Wagner's  engagement  was  then 
stated.  To  this  declaration  the  defendant  demurred:  and  the  ques- 
tion for  our  decision  is.  Whether  all  or  any  of  the  counts  are  good  in 
substance? 


158  LEGALITY   OF   MEANS   USED  [CHAP.  IV 

The  effect  of  the  two  first  counts  is,  that  a  person,  under  a  binding 
contract  to  perform  at  a  theatre,  is  induced  by  the  mahcious  act  of 
the  defendant  to  refuse  to  perform  and  entirely  to  abandon  her  con- 
tract; whereby  damage  arises  to  the  plaintiff,  the  proprietor  of  the 
theatre.  The  third  count  differs,  in  stating  expressly  that  the  per- 
former had  agreed  to  perform  as  the  dramatic  artiste  of  the  plain- 
tiff, and  had  become  and  was  the  dramatic  artiste  of  the  plaintifif 
for  reward  to  her;  and  that  the  defendant  maliciously  procured  her 
to  depart  out  of  the  emploj'ment  of  the  plaintiff  as  such  dramatic 
artiste;  whereby  she  did  depart  out  of  the  employment  and  service 
of  the  plaintiff;  whereby  damage  was  suffered  by  the  plaintiff.  It 
was  said,  in  support  of  the  demurrer,  that  it  did  not  appear  in  the 
Cy\  ^'^ declaration  that  the  relation  of  master  and  servant  ever  subsisted 
^  between  the  plaintiff  and  Miss  Wagner;  that  Miss  Wagner  was  not 
averred,  especially  in  the  two  first  counts,  to  have  entered  upon  the 
service  of  the  plaintiff;  and  that  the  engagement  of  a  theatrical 
performer,  even  if  the  performer  has  entered  upon  the  duties,  is  not 
of  such  a  nature  as  to  make  the  performer  a  servant,  within  the  rule 
of  law  which  gives  an  action  to  the  master  for  the  wrongful  enticing 
away  of  his  servant.  And  it  was  laid  down  broadly,  as  a  general 
proposition  of  law,  that  no  action  will  lie  for  procuring  a  person  to 
break  a  contract,  although  such  procuring  is  with  a  malicious  inten- 
tion and  causes  great  and  immediate  injiny.  And  the  law  as  to  en- 
ticing servants  was  said  to  be  contrary  to  the  general  rule  and  prin- 
ciple of  law,  and  to  be  anomalous,  and  probably  to  have  had  its 
origin  from  the  state  of  societ}^  when  serfdom  existed,  and  to  be 
founded  upon,  or  upon  the  equity  of,  the  Statute  of  Labourers.  It 
L  y)  was  said  that  it  would  be  dangerous  to  hold  that  an  action  was  main- 
tainable for  persuading  a  third  party  to  break  a  contract,  unless 
some  boundary  or  limits  could  be  pointed  out;  and  that  the  remedy 
for  enticing  away  servants  was  confined  to  cases  where  the  relation 
of  master  and  serv^ant,  in  a  strict  sense,  subsisted  between  the  parties; 
and  that,  in  all  other  cases  of  contract,  the  only  remedy  was  against 
Y  the  party  breaking  the  contract. 

Whatever  may  have  bo:^  i  the  origin  or  foundation  of  the  law  as 
to  enticing  of  servants,  and  whether  it  be,  as  contended  by  the  plain- 
tiff, an  instance  and  branch  of  a  wider  rule,  or  whether  it  be,  as  con- 
tended by  the  defendant,  an  anomaly  and  an  exception  from  the 
general  rule  of  law  on  such  subjects,  it  must  now  be  considered  clear 
law  that  a  person  who  wrongfully  and  maliciously,  or,  which  is  the 

isame  thing,  with  notice,  interrupts  the  relation  subsisting  bet\veen 
master  and  servant  by  procuring  the  servant  to  depart  from  the 
master's  service,  or  by  har})ouring  and  keeping  him  as  servant  after 
he  has  quitted  it  and  during  the  time  stipulated  for  as  the  period  of 
service,  whereby  the  master  is  injured,  commits  a  wrongful  act  for 
which  he  is  responsible  at  law.  I  think  that  the  rule  applies  wherever 
the  wrongful   interruption   operates  to  prevent  the  service   during 


SECT.  II]  INDUCING   BKEACll    OF   CONTRACT  159 

the  time  for  which  the  parties  have  contract^^d  that  the  service  snail 
continue:  and  I  think  that  the  relation  of  master  and  servant  sub- 
sists, sufficiently  for  the  purpose  of  such  a<-tion,  during  the  time 
for  which  there  is  in  existence  a  bindiiifi;  contract  of  hiring  and  s<'rv- 
ice  between  the  paitics;  and  I  think  tiiat  it  is  a  fanciful  and  tech- 
nical and  unjust  distinction  to  say  that  the  not  having  actually 
entered  into  the  service,  or  that  the  service  not  actually  continuing, 
can  make  any  difference  The  wrong  and  injury  are  surely  the  same, 
whether  the  wrongdoer  entices  away  the  gardener,  who  has  hired 
himself  for  a  year,  tlie  night  Ix'fore  he  is  to  go  to  his  work,  or  after 
he  has  planted  the  first  cabbage  on  the  first  morning  of  his  service; 
antl  I  should  be  sorry  to  support  a  distinction  so  unjust,  and  so 
repugnant  to  common  sense,  unless  bound  to  do  so  by  some  rule  or 
authority  of  law  plainly  shewing  that  such  distinction  exists.  .  .  . 
In  Hlake  r.  Lanyon  ^  the  party,  so  far  from  being  in  the  actual  service 
of  the  plaintiff,  had  abandoned  that  service,  and  entered  into  the 
service  of  the  defendant  in  which  he  actually  was;  but,  inasmuch 
as  there  was  a  binding  contract  of  service  with  the  plaintiffs,  and  the 
tlefendant  kept  the  party  after  notice,  he  was  held  liable  to  an  action. 
Since  this  decision,  actions  for  wrongfully  hirin  i  or  harbouring  serv- 
ants aft«r  the  first  actual  service  had  been  put  an  end  to  have  been 
fretjuent.  .  .  .  But  it  was  further  said  that  the  engagement,  em- 
ployment or  service,  in  the  present  case,  was  not  of  such  a  nature 
as  to  constitute  the  relation  of  master  and  servant,  so  as  to  warrant 
the  application  of  the  usual  rule  of  law  giving  a  remedy  in  case  of 
enticing  away  servants.  The  nature  of  the  injury  and  of  the  dam- 
age being  the  same,  and  the  supposed  right  of  action  being  in  strict 
analogy  to  the  ordinary  case  of  master  and  servant,  I  see  no  reason 
for  confining  the  case  to  services  or  engagements  under  contracts 
for  services  of  any  particular  description;  and  I  think  that  the 
remedy,  in  the  absence  of  any  legal  reason  to  the  contrary,  may 
well  apply  to  all  cases  where  there  is  an  unlawful  and  malicious  en- 
ticing away  of  any  person  employed  to  give  his  personal  labour  or 
service  for  a  given  time  under  the  direction  of  a  master  or  emplo3'cr 
who  is  injured  by  the  wrongful  act;  more  especially  when  the  party 
is  bountl  to  give  such  personal  services  exclusively  to  the  master 
or  employer;  though  I  by  no  means  say  that  tlie  service  need  Ik* 
exclusive.  .  .  . 

In  deciding  this  case  on  the  narrower  ground,  I  wish  by  no  means 
to  be  considered  as  deciding  that  the  larger  ground  *aken  by  Mr. 
Cowling  is  not  tenal)l(%  or  as  saying  that  in  no  case  except  that  of 
master  and  servant  is  an  action  maintainable  for  tunliciously  in- 
ducing another  to  break  a  contract  to  the  injury  of  the  person  with 
whom  such  contract  has  been  made.  It  does  not  appear  to  me 
to  be  a  sound  answer^to_say  that  the  act  in  such  ciTses  is  the  act 
of  the  pnTty^who  breiilcs  the  (■ontraTTT'frn^Vat  fea.son~vvouTd  apply" 

?21,  supra,  p.  l.'j.'). 


160  LEGALITY   OF   MEANS   USED  [CHAP.  IV 

in  the  acknowledged  case  of  master  and  servant.  Nor  is  it  an 
answer,  to  say  that  there  is  a  remedy  against  the  contractor,  and 
that  the  party  rehes  on  the  contract;  for,  besides  that  reason  also 
applying  to  the  case  of  master  and  servant,  the  action  on  the  con- 
tract and  the  action  against  the  malicious  wrongdoer  may  be  for 
a  different  matter;  and  the  damages  occasioned  by  such  malicious 
injury  might  be  calculated  on  a  very  different  principle  from  the 
amount  of  the  debt  which  might  be  the  only  sum  recoverable  on 
the  contract.  Suppose  a  trader,  with  a  malicious  intent  to  ruin  a 
rival  trader,  goes  to  a  banker  or  other  party  who  owes  money  to 
his  rival,  and  begs  him  not  to  pay  the  money  which  he  owes  him, 
and  by  that  means  ruins  or  greatly  prejudices  the  party:  I  am  by 
no  means  prepared  to  say  that  an  action  could  not  be  maintained, 
and  that  damages,  beyond  the  amount  of  the  debt  if  the  injury 
were  great,  or  much  less  than  such  amount  if  the  injury  were  less 
serious,  might  not  be  recovered.  ...  In  this  class  of  cases  it  must 
be  assimied  that  it  is  the  malicious  act  of  the  defendant,  and  that 
malicious  act  only,  which  causes  the  servant  or  contractor  not  to 
perform  the  work  or  contract  which  he  would  otherwise  have  done. 
The  servant  or  contractor  may  be  utterly  unable  to  pay  anything 
like  the  amount  of  the  damage  sustained  entirely  from  the  wrong- 
ful act  of  the  defendant:  and  it  would  seem  unjust,  and  contrary  to 
the  general  principles  of  law,  if  such  wrongdoer  were  not  responsible 
for  the  damage  caused  by  his  wrongful  and  malicious  act.  Several 
of  the  cases  cited  by  Mr.  Cowling  on  this  part  of  the  case  seem  well 
worthy  of  attention. 

Without  however  deciding  any  such  more  general  question,  I 
think  that  we  are  justified  in  applying  the  principle^f  the  action^jo^. 
enticJDg  away  servants  to  a  case  where  the  ^^efeniia.nt  maliciously 
procMresaparty,  who  is  under  a  valid  contract  to  give  her  exclusive 
"personal  serVTdeS  to  the  plaintiff  for  a  specified  period,  to  refuse  to 
give  such  services  during  the  period  for  which  she  had  so  contracted, 
"whereby  the  plaintiff  was  injured. 

I  think,  therefore,  that  our  judgment  should  be  for  the  plaintiff.  .  .  .^ 

Coleridge,  J.  ...  It  may  simplify  what  I  have  to  say,  if  I  first  state 
what  are  the  conclusions  which  I  seek  to  establish.  They  are  these: 
that  in  respect  of  breach  of  contract  the  general  rule  of  our  law  is 
to  confine  its  remedies  by  action  to  the  contracting  parties,  and  to 
damages  directly  and  proximately  consequential  on  the  act  of  him 
who  is  sued;  that,  as  between  master  and  servant,  there  is  an  ad- 
mitted exception;  that  this  exception  dates  from  the  Statute  of 
Labourers,  23  Edw.  3,  and  both  on  principle  and  according  to  author- 
ity is  limited  by  it.  If  I  am  right  in  these  positions,  the  conclusion 
will  be  for  the  defendant,  because  enough  appears  on  this  record  to 
shew,  as  to  the  first,  that  he,  and,  as  to  the  s(>cond,  that  Johanna 
Wagner,  is  not  within  the  limits  so  drawn. 

*  ConcurrinK  opinions  were  delivered  by  Eric,  J.,  and  \Vifi;htm:iii,  J.  — Ed. 


SECT.  II]  INDUCING   BREACH   OF   CONTRACT  161 

First  then,  that  the  remocly  for  breach  of  contract  is  by  the  gen- 
eral rule  of  our  law  confined  to  the  contracting  parties.    I  need  not 
argue  that,  if  there  be  any  remedy  by  action  against  a  strang<r,  it 
must  be  by  action  on  the  case.    Now,  to  found  this,  there  must  Ix? 
both  injury  in  the  strict  sense  of  the  word  (that  is  a  wrong  done), 
and  loss  resulting  from  that  injury:    the  injury  or  wrong  done  nmst 
be  the  act  of  the  defendant ;  and  the  loss  must  be  a  direct  antl  natural, 
not  a  remote  and  indirect,  consecjuence  of  tlie  defendant's  act.    I  n- 
less  there  be  a  loss  thus  directly  and  proximately  connected  with  the 
act,  the  mere  intention,  or  even  the  endeavour,  to  produce  it  will 
not  found  the  action.     The  existence  of  the  intention,  that  is  the 
malice,  will  in  some  ciuses  be  an  e.sseutial  iugicdicut  in  order  to  con- 
slitute  the  wrongfulness  or  injurious  nature  of  tlie  act;    but  it  will 
neither  supply  the  want  of  the  act  itself,  or  its  hurtful  consequence: 
however  compl(>te  the  injuria,  and  whether  with  malice  or  without,  if 
the  act  be  after  all  sine  dainiio,  no  action  on  the  case  will  lie.    The 
distinction  between  civil  and  criminal  proceedings  in  this  res|)ect  is 
dear  and  material;   and  a  recollection  of  the  dilTerent  objects  of  the 
two  will  dispose  of  any  argument  founded  merely  on  the  allegation 
of  malice  in  this  declaration,  if  I  shall  be  found  right  in  thinking 
that  the  defendant's  act  has  not  l)een  the  direct  or  proximate  cau.se 
of  the  damage  which  the  plaintiff  alleges  he  has  sustained.     If  a 
contract  hius  been  made  between  A  and  B  that  the  latter  should  go 
supercargo  for  the  former  on  a  voyage  to  China,  and  C,  however 
maliciously,  jjei-suades  B  to  break  his  contract,  l)ut  in  vain,  no  one, 
I  supjxjse,  would  contend  that  any  action  wouhl  lie  against  C.    On 
the  other  hand,  suppose  a  contract  of  the  same  kind  made  Ix^tween 
the  same  parties  to  go  to  Sierra  Leone,  and  C  urgently  and  bona 
fide  advises  B  to  abandon  his  contract,  which  on  consideration  B 
does,  whereby  loss  results  to  .V;    I  think  no  one  will  be  found  l>old 
enough  to  maintain  that>  an  action  would  lie  agamst  C.    In  the  tirst 
case  no  loss  has  resulted;    tho  mjaJice  has  been  ineffectual;    in  the 
second,  though  a  loss  hiis  res^ulted  from  the  act,  that  act  was  not 
C's,  but  entirely  and  exclusively  B's  own.    If  so,  let  malice  be  ailded, 
and  let  C  have  persuaded,  not  bona  fide  but  mala  fide  and  maliciously, 
still,  all  other  circumstances  remaining  the  same,  the  same  n^ason 
applies;  for  it  is  inalitia  sine  damno,  if  the  hurtful  act  is  entirely  and 
exclusively  B's,  which  last  circum.stance  cannot  V)e  affected  by  the 
presence  or  absence  of  malice  in  C.    Thus  far  I  do  not  apprehend 
much  difference  of  opinion:   there  would  lie  such  a  manifest  absunl- 
ity  in  attempting  to  trace  up  the  act  of  a  free  agent  breaking  a  con- 
tract to  all  the  advisers  who  may  have  influenced  his  mind,  more  or 
less  hon(>stly,  more  or  less  powerfully,  and  to  make  them  respon- 
sible civilly  for  the  conse(iu(Mu-(>s  of  what  after  all  is  his  own  act, 
and  for  the  whole  of  the  hurtful  consequences  of  which  the  law  makes 
him  directly  and  fully  responsibl(>,  that   I  bt^lieve  it  will  never  be 
contended  for  seriouslv.  .  .  .    Certainly  no  subject  could  well  be 


162 


LEGALITY   OF   MEANS   USED 


[CHAP.  IV 


more  fruitful  or  important;  important  contracts  are  more  com- 
monly broken  with  than  without  persuaders  or  procurers,  and  these 
often  responsible  persons  when  the  principals  may  not  be  so.  I  am 
aware  that  with  respect  to  an  action  on  the  case  the  argument  primm 
impresswnis  is  sometimes  of  no  weight.  If  the  circumstances  under 
which  the  action  would  be  brought  have  not  before  arisen,  or  are  of 
rare  occurrence,  it  wiU  be  of  none,  or  only  of  inconsiderable  weight; 
but,  if  the  circumstances  have  been  common,  if  there  has  been  fre- 
quently occasion  for  the  action,  I  apprehend  it  is  important  to  find 
that  the  action  has  yet  never  been  tried.  Now  we  find  a  plentiful 
supply  both.oftext  and  decision  in  the  case  of  seduction  of  fiervants;. 
and  what  inference  Hoes  this  lead  to^  contrasted  with  the  silenced 
t^5~boe^^d  the  absence  of  decisions  on  the  case  of  breach ^oFoF- 
dmary^gg^^s?  Let'l^iis  too  be  considered:  that7~in5y"the~com- 
■  riion  Taw  rfwaFactionable  effectually  to  persuade  another  to  break 
his  contract  to  the  damage  of  the  contractor,  it  would  seem  on  prin- 
ciple to  be  equally  so  to  uphold  him,  after  the  breach,  in  continu- 
ing it.  Now  upon  this  the  two  conflicting  cases  of  Adams  v.  Bafeald, 
1  Leon.  240,  and  Blake  v.  Lanyon,  6  T.  R.  221,  are  worth  consider- 
ing. In  the  first,  two  judges  against  one  decided  that  an  action  does 
not  lie  for  retaining  the  servant  of  another,  unless  the  defendant 
has  first  procured  the  servant  to  leave  his  master;  in  the  second, 
this  was  overruled,  and,  although  it  was  taken  as  a  fact  that  the 
defendant  had  hired  the  servant  in  ignorance  and,  as  soon  as  he 
knew  that  he  had  left  his  former  master  with  work  unfinished,  re- 
quested him  to  return,  which  we  must  understand  to  have  been  a 
real,  earnest  request,  and  only  continued  him  after  his  refusal,  which 
we  must  take  to  have  been  his  independent  refusal,  it  was  held  that 
the  action  lay:  and  this  reason  is  given:  "the  very  act  of  giving  him 
emplo>Tnent  is  affording  him  the  means  of  keeping  out  of  his  former 
service."  Would  the  judges  who  laid  this  down  have  held  it  ac- 
tionable to  give  a  stray  servant  food  or  clothing  or  lodging  out  of 
charity?  Yet  these  would  have  been  equally  means  of  keeping  him 
out  of  his  former  service.  The  true  ground^oiuwhich  Jjiis  action 
wgg_maintain3i3ley  Ji  at  _all^:^  wbjgh 

o  reference  was  made.    But  I  mention  this  case  now  as  shewing 


how  far  courts  of  justice  may  be  led  if  they  allow  themselves,  in  the 
pursuit  of  perfectly  complete  remedies  for  all  wrongful  acts,  to  trans- 
gress the  bounds  which  our  law,  in  a  wise  consciousness  as  I  con- 
ceive of  its  limited  powers,  has  imposed  on  itself,  of  redressing  only 
the  proximate  and  direct  consequences  of  wrongful  acts.  To  draw 
a  line  between  advice,  persuasion,  enticement  and  procurement  is 
practically  impossible  in  a  court  of  justice;  who  shall  say  how  much 
of  a  free  agents'  resohition  flows  from  th(>  interference^  of  other  minds, 
or  the  independent  resohition  of  his  own?  This  is  a  matter  for  the 
casuist  rather  than  the  jurist;  still  less  is  it  for  the  juryman.  Again^ 
why  draw  the  line  between  bad  and  good  faith?    If  advice^^ivep 


SECT.  II]  INDUCING   BREACH   OF   CONTRACT  103 

mala  fide,  and  loss  sustained,  entitle  me  to  damages,  why,  though  the 
advice  be  given  horu^sTty,  burT[nder~wrong"TiTfDrrnatl0Tr7--witl^  a^loss 
sustained,  am  iTiot  (TiTTllcd  to  tnemr"Acc(mIiiig  toall  legal  analogies, 
uuT^na  fuks  of^Ium  wlJioTby^  conscious  wilful  a<-t,  directly  injures 
me  will  not  relieve  him  from  the  obligation  to  comix'iisate  me  in 
damages  for  my  loss.  Again,  where  several  {X'rsons  hapiK'n  to  jx'r- 
suade  to  the  same  effect,  and  in  the  result  the  party  jK'rsuaded  acts 
ujion  the  advice,  how  is  it  to  b<'  (Ictcrniined  against  whom  the  action 
may  be  brought,  whetlier  they  are  to  be  sued  jointly  <jr  severally, 
in  what  proportions  damages  are  to  be  recovered?  Again,  if,  in- 
stead of  limiting  our  recourse  to  the  agent,  actual  or  constructive, 
we  will  go  back  to  th(!  person  wiio  inunediately  persuades  or  pro- 
cures him  one  step,  why  are  we  to  stop  there?  The  first  mover, 
and  the  malicious  mover  too,  may  be  removed  several  steps  back- 
ward from  the  party  actually  induced  to  break  the  contract:  why 
are  we  not  to  trace  him  out?  Morally  he  may  be  the  most  guilty. 
I  adopt  the  arguments  of  Lord  Ahingcr  and  my  brother  Alderson 
in  the  ca,se  of  Winterlx)ttom  v.  Wright,  10  M.  &  W.  109;  if  we  go 
the  first  step,  we  can  shew  no  good  reason  for  not  going  fifty.  And, 
again,  I  ask  how  is  it  that,  if  the  law  really  be  as  the  plaintiff  con- 
tends, we  have  no  discussions  upon  such  questions  as  these  in  our 
books,  no  decisions  in  our  reports?  Surely  such  cases  would  not 
have  been  of  rare  occurrence:  they  are  not  of  slight  importance, 
and  could  hardly  have  been  decided  without  reference  to  the  Courts 
in  Banc.  Not  one  was  cited  in  the  argument  l)earing  closely  enough 
upon  this  point  to  warrant  me  in  any  further  detailed  examination 
of  them.  I  conclude  therefore  what  occurs  to  me  on  the  first  prop- 
osition on  which  the  plaintiff's  case  rests. 

I  come  now  to  the  second  proposition,  that  the  decisions  in  re- 
spect of  master  and  servant,  and  the  seducing  of  the  latter  from  the 
employ  of  the  former,  are  exceptions  grafted  on  the  general  law- 
traceable  up  to  the  Statute  of  Labourers.  This  is  of  couree  distinct 
from  the  question  of  the  extent  of  the  exception,  that  is,  to  what 
classes  of  servants  it  applies:  but  the  encjuiries  are  so  connected 
together  in  fact,  and  th(^  latter  has  so  obvious  a  bearing  in  support 
of  the  former,  that  it  will  ho.  better  to  take  them  both  together. 

Now,  in  the  first  place,  I  cannot  find  any  instance  of  this  action 
having  been  brought  before  the  statute  passed;  the  weight  of  which 
fact  is  much  increased  by  finding  that  it  was  of  common  occurrence 
very  soon  after.  The  evidence  for  it  is  not  merely  negative;  for  the 
mischief  and  the  cause  of  action  appear  to  have  been  W(>11  known 
before,  and  the  want  of  the  remedy  felt.  ...  . 

Any  one,  I  am  certain,  who  will  go  through  the  cases  abstracted  ^  I 
by  Fitzh('rl>ert    under  the  title    Laborers,  will  be    satisfied    that    at     [  \jo 
common  law,  Ix'fore  the  Statute,  such  an  action  ;us  the  present   could 
not  be  maintained.     Under  that  title  61  eases  are^abridged : _riIlLDX 
of  them  are  for  the  se^uction'^r^ser\witsr"ljurThere  is  no  mstance 


164 


LEGALITi'  OF  MEANS  USED 


[CHAP.  IV 


of  any  one  in  which  the  action  at  common  law  was  sustained,  unless 
an  actual  trespass  was  charged:  and  it  is  clear,  from  the  case  whicK 
I  have  cited  at  so^Tnuch  length ,  that  the  distinction  between  taking 
and  procuring  to  go  was  familiar  to  the  lawyers  of  that  day.  I  can 
hardly  imagine  that  this  could  have  been  said,  if  the  common  law 
would  have  given  relief  in  such  a  case:  and,  if  it  could,  the  rapid 
growth  of  the  action  after  the  Statute  of  Labourers  had  passed  would 
be  difficult  to  account  for. 

I  come  then  to  the  Statute  of  Labourers  (23  Ed.  3);  and  my 
object  now  is  to  shew  that  nothing  in  the  provisions  or  policy  of  that 
statute  will  warrant  the  action  under  the  circumstances  of  this  case; 
and  that  the  older  authorities  are  decidedly  against  it.  .  ,  .  What- 
ever may  be  said  of  the  uncertainty  and  often  conflicting  nature  of 
decisions  from  the  Year  Books,  and,  however  we  may  now  smile 
at  some  of  the  reasonings  of  the  judges,  probably  not  without  their 
weight  when  uttered,  they  seem  to  me  satisfactorily  to  establish 
the  principle,  that  actions  framed  on  the  statute  were  governed  by 
a  consideration  of  the  object  and  language  of  the  statute,  and  that 
y^'  j  these  pointed  only  to  the  compulsion  of  labourers,  handicraftsmen, 
and  people  of  low  degree  who  had  no  means  of  their  own  to  live 
upon,  and  who,  if  they  did  not  live  by  wages  earned  by  their  labour, 
^  would  be  vagrants,  mendicants  or  worse.  If  this  be  so,  I  appre- 
hend it  is  quite  clear  that  Johanna  Wagner  could  not  have  been 
compelled,  while  the  statute  was  unrepealed,  to  serve  the  plaintiff 
in  any  of  the  capacities  stated  in  this  declaration.  ...  If  Johanna 
Wagner  be  not  within  the  statute,  and  could  only  have  been  sued, 
as  at  common  law,  upon  her  contract  for  the  breach  of  it,  it  will 
follow,  I  conceive,  that  the  present  action  could  not  have  been  main- 
tained against  the  defendant  while  the  statute  was  in  force,  and  of 
course  cannot  now,  if,  as  I  contend,  the  action  arises  from  and  is 
limited  by  the  purview  of  the  statute.  .  .  . 

I  conclude  then  that  this  action  cannot  be  maintained,  because: 
1st.  Merely  to  induce  or  procure  a  free  contracting  party  to  break 
his  covenant,  whether  done  maliciously  or  not,  to  the  damage  of 
another,  for  the  reasons  I  have  stated,  is  not  actionable;  2d.  That 
the  law  with  regard  to  seduction  of  servants  from  their  masters' 
employ,  in  breach  of  their  contract,  is  an  exception,  the  origin  of 
which  is  known,  and  that  that  exception  does  not  reach  the  case  of 
a  theatrical  performer.  .  .  .  Judgment  for  plaintiff.^ 

^  Tho  (loctrinp  of  Liimloy  v.  Gyo,  although  accepted  by  the  weight  of  n^t.hqpt 
has^^eca_fl;itly  r^jp^'tftl  in  :i  number  oOmnsaiGtiDngr'^c,  lor  example,  Boyson  v. 
TKom,  98  Cair578;  Chambers  t;.  BaldwinTinKv.  121;  Bourlier  v.  Macauley, 
91  Ky.  1.35;  Swann  v.  Johnson,  151  N.  C.  93;  Sleeper  (;.  Baker,  22  N.  D.  380.  Sec 
also,  Glenooe  Land  <fe  Gravel  Co.  v.  Commission  Co.,  138  Mo.  4.39  (doctrine  re- 
jected except  where  the  rehition  of  mast<>.r  and  servant  exists);  Kline  v.  Eubanks, 
109  La.  241.  Tlie  earlier  i)osition  of  the  New  York  courts,  at  first  expressly  re- 
jecting the  English  doctrine  of  Lumley  v.  Gye,  has  been  materially  modified  by 
later  case.s.    As  illu.strative  of  the  present  attitude  of  New  York  courts,  see  Posner 


i5vt^ 


i/ 


^-^ 


> 


Ta* 


t^,\J<A^^ 


SECT,   ir]  INDUCING   BREACH    OF   CONTRACT  IG.J 

BEEKMAN  v.  MARSTERS 
Supreme  Judicial  Court  of  Massachusetts,     1907 

195  Mass.  205 

LoRiNG,  J.  This  suit  came  before  the  sinj^le  justice  on  the  report 
of  a  master  to  which  no  exceptions  had  been  taken  by  either  party, 
an<l  waH  reserved  by  him  for  our  consideration  and  determination 
witluMit  any  rulinji;  or  decision  having  been  made. 

The  master  found  that  on  Nc)vember  21,  19(K),  a  ('(jntract  was  madci 
ix'tween  the  plaintitT  and  the  Jamestown  Hotel  ("orixnation.  That 
corporation  is  erecting  or  has  erected  a  hotel  within  the  grounds  of 
the  Jamestown  Exposition  to  be  held  between  April  2(>  and  Novem- 
ber 30  of  this  year.  This  hotel  is  known  as  the  Inside  Inn,  and  is  to 
be  the  only  hotel  witliin  the  exposition  grounds.  The  plaintitT  is  the 
proprietor  of  a  tourist  agency,  having  an  office  at  293  \Va.shington 
Street,  Boston.  By  the  contract  between  the  plaintiff  and  the  Hotel 
Corporation  the  |)laintiff  agreed  to  represent  the  Hotel  Corporation 
throughout  the  New  England  States,  to  establisii  sub-agencies  in 
that  territory,  and  to  use  every  possible  endeavor  personally  and 
through  his  agents  to  book  persons  for  the  Inside  Inn;  and  the  de- 
fendant agreed:  "That  you  [the  plaintiff]  shall  \)C  our  exclusive 
agent  in  said  territory";  to  pay  the  plaintitT  twenty-five  cents  a  day 
for  each  person  sent  l)y  him  to  the  hotel;  and  to  furnish  the  plaintiff 
with  all  necessary  "literature." 

Immediately  upon  being  thus  appointed  the  exclusive  agent  of  the 
Hotel  Corporation  tlie  plaintitT  prepared  and  issued  a  "Fall  Edition" 
of  his  "Tiekets  and  Tours,"  in  which  inter  alia  a  description  is  given  of 
the  Jamestown  Exposition  and  of  the  Inside  Inn.  Following  this  is  the 
statement  that  the  plaintiff  has  been  appointed  New  England  agent 
for  the  exposition  "and  exclusive  representative  of  the  Inside  Inn." 

The  defendant  is  found  l)y  the  master  to  be  a  ticket  and  tourist 
agent,  with  an  othce  at  298  Washington  Street,  Boston.  On  Januar>' 
11,  1907,  he  went  to  Norfolk,  \'irginia,  and  called  upon  the  officers  of 
the  Hotel  Corporation  there.  At  this  time  he  "had  seen  the  contract 
between  the  complainant  and  the  hotel  corporation,  but  had  not 
read  it,  and  knew  tliat  the  company  had  practically  consummated 
a  contract  making  Beekman  its  sole  representative  in  New  iMigland." 
The  defendant  at  this  interview^  told  these  officers  "that  it  was  a  mis- 
take for  the  corporation  to  give  an  exclusive  agency  in  New  England 
to  any  on(^  man,  and  that  more  business  would  be  brought  to  the 
company  if  all  agents  were  given  ecjual  terms,"  and  to  enforce  his 
arguments  stated  that  the  business  done  l)y  the  plaintiff  was  insig- 
nificant and  that  the  statement  was  false  which  was  made  in  the  sum- 
Co.  V.  Jackson,  22:?  N.  Y.  325;  Lanih  r.  Clienoy.  227  N.  V.  41S.  The  earlier  New 
York  (lootrino  may  be  found  in  sucli  ra.se.s  as  Daly  v.  Cornwell,  34  -App.  Div.  27; 
Dc  Jonp  V.  Hohmian  Co.,  148  App.  Div.  37. 


166  LEGALITY   OF   MEANS   USED  [CHAP.  IV 

mer  edition  of  his  "Ticket  and  Tours"  that  certain  persons  therein 
named  had  his  tickets  and  tours  for  sale.  It  appeared  that  the  sum- 
mer edition  of  this  catalogue  had  been  shown  to  the  Hotel  Corpora- 
tion by  the  plaintiff  when  he  made  his  contract  with  it. 

The  master  found  that  "As  a  result  of  the  solicitations  or  repre- 
sentations made  by  the  respondent,  the  Jamestown  Hotel  Corpora- 
tion on  or  about  January  11,  1907,  entered  into  an  oral  contract  with 
him,  whereby  it  was  agreed  that  the  respondent  should  have  the 
same  rights  that  had  been  given  to  the  complainant,  and  that  he 
should  be  paid  by  the  corporation  twenty-five  cents  per  capita  per 
day  for  each  guest  whom  he  should  secure  for  the  Inside  Inn." 

The  defendant  then  wrote  to  all  men  named  in  the  plaintiff's  cat- 
alogue except  those  having  places  of  business  in  Canada,  "and  two 
or  three  others  who  appeared  to  have  an  independent  agency  busi- 
ness," telling  them  that  the  plaintiff  had  not  an  exclusive  agency  for 
New  England  and  suggesting  to  them  that  they  could  get  paid  on  the 
same  footing  as  that  upon  which  the  plaintiff  and  the  defendant  were 
to  be  paid,  if  they  chose  to  act  for  themselves  and  not  as  sub-agents 
of  the  plaintiff.  He  also  wrote  to  the  New  York,  New  Haven,  and 
Hartford  Railroad  Co.,  calling  attention  to  the  fact  that  some  of 
the  local  ticket  agents  of  that  railroad  company  were  advertised  by 
the  plaintiff  as  having  his  tickets  and  tours  on  sale,  and  suggesting 
that  the  railroad  company  would  prefer  to  have  all  its  agents  strictly 
neutral  in  dealing  with  tourist  concerns. 

With  respect  to  these  letters  the  master  made  this  finding:  "The 
purpose  of  the  respondent  in  sending  the  letters  above  mentioned 
appears  from  the  letters  themselves.  I  do  not  find  that  the  respond- 
ent was  actuated  by  malice  toward  the  complainant." 

The  master  further  found  that  "The  Jamestown  Hotel  Corpora- 
tion has  never  at  any  time  rescinded,  or  attempted  to  rescind,  its  said 
contract  with  the  complainant";  that  "The  complainant  has  never 
waived  any  of  his  rights  under  the  contract,  and  has  never  consented 
to  any  modification  or  alteration  thereof  except  with  reference  to  the 
bond"  which  is  not  material;  and  further,  that  "The  Inside  Inn  is 
the  only  hotel  which  is  located,  or,  under  the  contract  of  the  com- 
pany with  the  exposition,  can  be  located,  within  the  exposition 
grounds.  The  exclusive  right  to  act  as  agent  for  the  Inside  Inn  within 
the  New  England  territory  is  a  valuable  right." 

Lastly  he  has  found:  "There  is  a  strong  probability  that  a  large 
tourist  business  will  be  done  between  Boston  and  New  England  and 
the  Jamestown  Exposition  between  April  and  the  close  of  the  ex- 
position in  November,  and  that  many  passengers  will  arrange  for 
tours  through  various  tourist  agencies.  In  all  probability  many  more 
passengers  will  buy  tours  and  tickets  from  the  complainant  if  ho  is 
the  exclusive  agent  in  New  England  for  the  Inside  Inn  than  will  be 
the  case  if  other  tourist  agents  also  book  guests  or  issue  coupons  or 
other  devices  which  are  accepted  by  the  Hotel  Corporation  for  ac- 


SECT.  II]  INDUCING   BREACH    OF   CONTRACT  107 

commodations.  The  damage  which  ho  will  sustain  if  the  respondent 
or  (jther  persons  arc  allowed  to  act  as  agents  or  to  ImmjIc  guests  or  issue 
coupons  in  this  manner  is  incapable  of  accurate  ascertainment.  The 
loss  to  the  complainant  will  not  Ix'  merely  the  loss  of  the  conuniKsion 
of  twenty-five  cents  per  capita  per  day,  which  would  otherwis<-  Ik? 
received  from  the  hotel,  hut  it  will  We  the  loss  of  jjrofits  on  tours  which 
he  might  otherwise  l>e  able  to  arrange." 

The  result  of  the  findings  of  the  master  must  ix-  l:ikfn  to  be  that 
the  defendant  induced  the  Hotel  Corporation  to  break  its  contract 
with  th(>  plaintiff,  but  that  he  did  not  do  this  to  spit<'  the  plaintifT  or 
for  the  purpos(!  of  injuring  him,  but  for  the  purpose  of  getting  for 
himself  (the  defendant)  business  which  the  plaintiff  alone  was  en- 
titled to  under  the  contract  with  the  Hotel  Corporation,  that  is  to 
say,  to  get  business  which  the  defendant  could  not  get  if  the  Hotel 
Corporation  kept  its  agreement  with  the  plaintiff. 

Three  defences  have  been  set  up  by  the  defendant,  namely:  Kirst, 
that  he  had  a  right  to  do  what  he  did;  second,  that  the  plaintiff  does 
not  come  into  court  with  clean  hands;  and  third,  that  the  plaintiff 
has  an  adequate  remedy  at  law  by  bringing  an  action  for  tlamages. 

1.  So  far  as  the  first  defence  is  concerned,  it  is  in  effect  that  whei-e 
A  is  under  a  contract  to  serve  the  plaintiff  for  a  si^ecified  time,  the 
defendant,  knowing  that  contract  to-be  in  existence,  is  justified  in 
hiring  A  away  from  the  plaintiff  before  the  expiration  of  that  time, 
by  giving  him  (A)  higher  wages  if  he  (the  tlefendaiit)  thinks  that  to 
be  for  his  (the  defendant's)  pecuniary  benefit.  The  ground  on  which 
the  defendant  bas(>s  this  contention  is  that  he  has  a  right  to  compete 
with  the  plaintiff  and  that  the  right  of  competition  is  a  justification 
for  thus  hiring  away  the  plaintiff's  servant. 

We  say  that  this  is  in  effect  the  defence  set  up  here  because  it  has 
been  settled  in  Massachusetts  that  there  is  no  distinction  l^etween 
a  defendant's  enticing  awaj-  the  plaintiff's  servant  and  a  defendant's 
inducing  a  third  person  to  break  any  other  contract  between  him  and 
the  plaintiff.  That  was  decided  by  this  court  in  Walker  v.  Cronin, 
107  Mass.  555;  see  p.  5(>7.  See  also  Moran  v.  Dunphy,  177  Mass. 
485.  In  other  words,  this  court  there  adopted  the  conclusion  reached 
by  the  majority  of  the  judges  of  the  Queen's  Bench  in  Lumley  v. 
Gye,  2  El.  k  Bl.  21().  This  is  also  the  settled  law  of  the  Supreme 
Court  of  the  United  States.  Angle  v.  Chicago,  St.  Paul,  Minneaix)lis 
&  Omaha  llailway,  151  U.  S.  1.  And  it  has  been  affirmed  in  England. 
Bowen  v.  Hall,  6  Q.  B.  D.  333.  Read  v.  Friendly  Society  of  OjM'ra- 
tive  Stonemasons,  [1002]  2  K.  B.  SS.  Cdamorgan  Coal  Co.  v.  South 
Wales  Miners'  Federation,  [1903]  2  K.  B.  545;  s.  c.  on  apjx^al.  .s-i//> 
nomine  South  Wales  Miners'  Federation  v.  Cdamorgan  Coal  Co.. 
[1905]  A.  C.  239. 

No  case  has  been  cited  wliich  holds  tliat  a  rigiit  to  eomix^te  justifie.«i 
a  def(>ndant  in  intentionally  inducing  a  tiiird  person  to  take  away 
from  the  plaintiff  his  contractual  rights. 


168  LEGALITY   OF   MEANS   USED  [CH\P.  IV 

Not  only  has  no  case  been  cited  in  which  that  has  been  held,  but 
no  case  has  been  cited  in  which  that  contention  has  been  put  for- 
ward. .  .  . 

The  argument  here  ui'ged  by  the  defendant  comes  from  not  dis- 
tinguishing between  two  cases  which  not  only  are  not  the  same  but 
are  altogether  different  so  far  as  the  question  now  under  considera- 
tion is  concerned. 

If  a  defendant  by  an  offer  of  higher  wages  induces  a  laborer  who 
is  not  under  contract  to  enter  his  (the  defendant's)  employ  in  place 
of  the  plaintiff's,  the  plaintiff  is  not  injured  in  his  legal  rights.  But 
it  is  a  quite  different  thing  if  the  laborer  was  under  a  contract  with 
the  plaintiff  for  a  period  which  had  not  expired  and  the  defendant, 
knowing  that,  intentionally  induced  the  laborer  to  leave  the  plain- 
tiff's employ  by  an  offer  of  higher  wages,  to  get  his  (the  laborer's) 
services  for  his  (the  defendant's)  benefit. 

A  plaintiff's  right  to  carry  on  business,  that  is,  to  make  contracts 
without  interference,  is  an  altogether  different  right  from  that  of 
being  protected  from  interference  with  his  rights  under  a  contract 
already  made.  The  existence  of  both  rights  and  the  difference  be- 
tween the  two  is  recognized  by  Wells,  J.,  in  Walker  v.  Cronin,  107 
Mass.  555;  the  first  count  in  that  case  went  on  the  first  right,  and 
the  second  and  third  counts  on  the  second  right.  Again,  the  existence 
of  the  two  is  recognized  and  stated  by  Holmes,  J.,  in  May  v.  Wood, 
172  Mass.  11,  14,  15. 

Where  the  plaintiff  comes  into  court  to  get  protection  from  inter- 
ference with  his  right  of  possible  contracts,  that  is,  of  his  right  to 
pursue  his  business,  acts  of  interference  are  justified  when  done  by  a 
defendant  for  the  purpose  of  furthering  his  (the  defendant's)  in- 
terests as  a  competitor.  .  .  . 

There  are  statements  in  opinions  in  Massachusetts  and  in  England 

that  a  defendant  is  not  liable  for  interference  with  a  plaintiff's  rights 

in  both  of  these  two  classes  of  cases  unless  he  acts  maliciously  within 

the  meaning  of  malice  as  used  in  these  opinions.    In  the  case  at  bar 

<> there  was  no  necessity  of  proving  spite  or  ill-will  toward  the  plaintiff. 

/  This  is  not  a  case  where  there  was  an  abuse  of  what ,  if  done  in  good 

S faith,  would  have  been  a  justification,  but  aj^se  where  the  dcfejid- 

/ant  witlL-knowlcdgc_of^  the  contract  l)?^fween  me^  plaintiff  and  th^ 

^IlaEel  Corporation  intentionally  and  without   justification  induced 

ItneTlotel  Corporation  to  breakjt.    That  is  proof  of  malice  within 

\tKe  meaning  of  that  word  as  used  in  these  opinions.    South  Wales 

/Miners'  Federation  v.  Glamorgan  C^oal  Co.,  [1905]  A.  C.  239.i  .  .  . 

3.  The  finding  of  the  master  as  to  the  damages  which  the  plaintiff 
is  likely  to  suffer  shows  that  an  action  at  law  would  not  give  him 
an  adequate  remedy.  Wh(M(>  th(>  plaintiff  prov(>s  that  the  defendant 
unlawfully  interferes  or  thn^atens  to  interfere  with  his  business  or  his 

*  That  part  of  the  opinion  dnaling  with  the  defence  that  the  plaintiff  did  not 
come  intf)  court  with  clcjin  hands  in  omitted.  —  Ed. 


SECT.  II]  INDUCING     BREACH   OF   CONTRACT  109 

rights  under  a  contract,  and  further  makes  out  in  proof  that  dam- 
ages will  not  afford  an  adecjuate  remedy,  ('(juity  will  isKue  an  injunc- 
tion. The  issuing  of  injunctions  in  \'eKeljilin  v.  (luntner,  lliT  Mii-ss, 
92,  and  similar  cases,  the  la.st  of  which  is  Pickett  v.  W'ulsh,  192  Ma.ss. 
572,  are  decisi(jns  directly  in  point.  As  to  which  see  Sherry  v.  Perkins, 
147  Ma.ss.  212. 

The  terms  of  the  injunction  should  Ix^  in  substance  that  the  defend- 
ant be  restrained  from  directly  or  indirectly  acting  as  agent  of  the 
Hotel  Corporation  witliin  the  New  Iliijiland  Stsitcs,  ajid  from  pre- 
venting or  s(H'king  to  prevent,  directly  or  indirectly,  the  jjlaintiff 
from  acting  as  exclusive  agent  of  the  Hotel  Corporation  for  that 
territory.  So  ordered.^ 

HOiVIAN  V.  HALL 

Supreme  Coukt  of  Nebraska.     1917 

102  Neb.  70 

MoRRissEY,  C.  J.  From  an  order  sustaming  a  demurrer  to  the 
petition  and  dismissing  the  action,  plaintitY  ajjpeals.  The  jX'tition 
alleges:   That  the  plaintiff  and  one  Bangs,  now  deceased,  had,  dur- 

'  In  EmployinK  Printers  Club  v.  Doctor  Blosser  Co.,  122  Ga.  509,  where  a 
lonihiiiiition  of  employing  i)rintcr.s,  in  order  to  force  an  independent  printer  to 
al)ide  by  the  prices  fixed  and  the  reKuhitions  made  by  the  combination,  induced 
the  workmen  of  the  independent  printer  to  leave  his  employ  and  thus  l)reak  their 
contracts  of  .service  with  him,  Evans,  J.,  said  in  part  (p.  ol9):  "  Speaking  for  my- 
.self,  I  believe  the  same  resusons  which  support  the  principle  that  an  action  will 
lie  for  the  malicious  procurement  of  a  breach  of  contract  of  personal  service  will 
cover  every  case  where  one  person  maliciously  persuades  and  in< luces  another  to 
break  any  legal  contract.  In  the  case  at  bar  the  relation  of  master  and  .servant 
did  exist  between  the  plaint ilT  and  his  employees,  and  even  applying  the-  common- 
law  rule  of  liability,  the  dc^fcndants  would  be  answcraV)le  in  damages  to  the  plain- 
tiff for  a  malicious  procurement  of  the  breach  of  contract  by  its  employees.  The 
term  '  malicious,'  ust'd  in  this  connection,  Ls  to  be  given  a  liberal  meaning.  The 
act  is  malicious  when  the  thing  done  is  with  the  knowledge  of  the  plaintiff's 
rights,  and  with  the  intent  to  interfere  therewith.  It  is  a  wanton  interference 
with  another's  contractual  ri'zlits.  Ine'Toctive  persuasion  to  induce  another  to 
violate  his  contract  would  not,  of  its'lf,  l)e  actionable,  but  if  the  per.sua.sion  !« 
used  for  the  purpose  of  injuring  the  plaintiff,  or  benefiting  the  defendant  at  the 
expense  of  the  plaintiff,  with  a  knowledge  of  the  .subsistence  of  the  contract,  it 
becomes  a  malicious  act,  anil  if  injury  ensues  from  it  a  cause  of  action  accrues  to 
the  injured  party.  Bowen  v.  Hall,  .•^uprn.  .\s  w;vs  .said  by  Compton,  J.,  in  Lunilev 
V.  Gye,  suj>ra,  '  it  must  now  be  considered  as  clear  law  that  a  person  who  wrong- 
fully and  maliciously,  or,  which  is  the  same  thing,  with  notice,  interrupts  the 
relation  subsisting  between  ma.stcr  and  servant,  by  procuring  the  s«"rvant  to 
depart  from  the  master's  service,  ...  is  responsible  at  law.'  See  D«iremvLs  r. 
IIenne.s.sy,  ITo  HI.  tJOS." 

In  Angle  v.  Chicago.  St.  Paul,  etc.,  Ry.,  I.'')!  V.  S.  1,  1."^.  lirewer,  J.,  said:  "It 
has  been  n-peatedly  held  that,  if  one  maliciously  interferes  in  a  contract  lietween 
two  parties,  and  induces  one  of  them  to  break  that  contract  to  the  injury  of  the 
other,  the  party  injured  can  maintain  an  action  against  the  wrongdo<^r."  Si-e 
also,  Dorenuis  v.  Hennessy,  17(i  111.  tiOS;  The  Jersey  Citv  Printing  Co.  r.  Ca.ssidy, 
03  N.  J.  Eq.  759. 


170  LEGALITY   OF   IVIEANS   USED  [CHAP.  IV 

ing  the  lifetime  of  Bangs,  entered  into  an  agreement  to  marry;  that 
they  had  agreed  upon  the  date  when  the  ceremony  should  be  per- 
formed; and  that  each  of  the  parties  was  capable  of  entering  into 
the  marriage  relation. 

"  That  the  said  defendants  each  jointly  and  severally  maliciously, 
wrongfully,  unlawfully,  and  without  just  cause^and To  advance  their 
own  pecimiary  interests,  interposed  objections  to  the  said  Stephen 
D.  Bangs  carrying  out  his  said  contract  with  plaintiff,  and  through 
threats  that  they  would  place  him  in  a  sanitarium  and  have  him  re- 
moved out  of  the  circle  of  society  in  which  he  was  known  and  had 
lived,  and  through  falsely  represent  ing  that  plaintiff  was  of  an  unchaste 
character,  and  by  unlawful  restraint  and  undue  influence,  caused 
the  said  Stephen  D.  Bangs  not  to  fulfil  his  said  contract  of  marriage 
with  plaintiff,  and  caused  the  said  Stephen  D,  Bangs  to  breach  and 
break  his  said  contract  of  marriage  with  plaintiff;  that  on  the  4th 
day  of  November,  1914,  said  Stephen  D.  Bangs  was  ready  and  will- 
ing to  marrj^  the  plaintiff,  and,  but  for  the  wrongful  interference  of 
the  said  defendants  as  aforesaid,  he  was  then  and  there  able  to  do  so. 
"Plaintiff  states:  That,  by  reason  of  the  said  wrongful  acts  of  the 
said  defendants  in  causing  the  breach  of  the  said  contract  of  mar- 
riage, plaintiff  sustained  the  loss  of  an  advantageous  matrimonial 
connection,  the  said  Stephen  D.  Bangs  being  a  man  of  wealth  at  the 
date  set  for  the  wedding  and  a  man  of  social  position;  that  plaintiff's 
affections  have  been  disregarded  and  blighted,  she  has  been  dis- 
appointed in  her  affections,  and  her  spirit  and  feelings  wounded, 
resulting  in  great  mental  distress  and  humiliation,  and  she  has  been 
damaged  in  the  sum  of  $200,000,  no  part  of  which  has  been  paid." 

The  cause  of  action  for  slander  was  barred  by  the  statute  of  limi- 
tations and  is  not  relied  upon  by  plaintiff,  but  her  action  seems  to 
be  for  enticement  or  alienation  of  her  fiance.    We  arc  cited  to  no 
authority  that  sanctions  a  recovery  under  such  circumstances.  Where 
the  marriage  relation  exists  and  third  parties  entice  away  the  spouse 
or  alienate  the  affections,  a  recovery  is  allowed,  but  the  cause  of  ac- 
tion rests  upon  the  right  to  the  society,  companionship,  conjugal 
affections  and  fellowship  of  the  estranged  spouse.    There  is  no  such 
right  in  the  fiancee.    An  alienation  suit,  therefore,  is  maintainable 
/   only  for  interference  with  the  conjugal  rights  of  the  plaintiff. 
/        "  The  prevention  of  a  marriage  by  the  interference  of  a  thirdpereon 
I     cannot,  injencrat7"TrritsclT,  be  a  legal  wrong.    Thus,  if  one,  by^olici- 
I     tafionR7]gL-by^2£*Larts  of  ridicule  or  otherwisc^^alLmduce_one  to^ 
\    SfeaK  ofLaJi-£ldgtiflfLcontract  of  marriage,  no  action  will  lie  for  itj^ 
\  however  contemptible  and  blamable  mayBetReconduct.  ..."  Cooley, 
Torts  (2d  ed.),  p.  277.        "~  '  '  ^ 

The  right  of  engaged  parties  to  ask  advice  of  their  friends  and  the 
right  of  the  friends  to  give  advice  has  never  been  denied.  To  hold 
that  a  third  party  may  be  subject  to  answer  in  damages  for  advising 
or  inducing  an  engaged  person  to  break  the  engagement  might  re- 


SECT.  II]  INDUCING   BREACH    OF   CONTItACT  171 

suit  in  a  suit  hy  every  disappointed  lover  against  his  successful  rival. 

The  state  has  an  interest  in  the  nmrriag<'  r(.'luti<Mi,  and  until  the  m^- 

riaj^e  is  solcmjiized  no  tloinestic  rights  existj^andjlierefore  cannot^  be 

yiolated. 

The  ruling  of  the  trial  eourt  is  without  error,  ami  the  judgment  is 
Rose,  J.,  not  sitting.  Ajjirmed. 

SOUTH   \\'ALi:.s  MIXERS'  FEDERATION  i-.  GL; 
MORGAN  GOAL  GO.,  Ltd. 

House  of  Loud.s.     1905 

1 1905]  .1.  C.  239 

The  Glamorgan  Coal  Go.,  Limited,  and  seventy-three  other  plain- 
tiffs, owners  of  ccjUieries  in  Sciuth  Wales,  brought  this  action  again.st 
the  South  Wales  Miners'  Federation,  its  trustees  and  officers,  and  I^a^ 

several    members   of   its   executive   council,    claiming   damages   for      \f^^'*''^J^^ 
wrongfully  and  maliciously  procuring  and  inducing  workmen  in  the 
collicM'ies  to  break  th(Mr  contracts  of  service  with  the  plaintiffs,  and  -— x        _^ 
alternatively   for   wrongfully   and  maliciously   ccnispiring   to  do  .so.         Ly?  /       '  ' 
Evidence  of  the  facts  proved  at  the  trial  before  Bigham,  J.,  without      '      n^    '' 
a  jury  is  set  forth  in  the  report  of  his  judgment,  [1903]  2  K.  B.  546-  /     >       J 

558,  and  the  principal  facts  are  stated  by  Lord  James  in  this  House,      via^^.-—/  ^ 
Briefly  th(^  ca.se  was  as  follows.    The  federation  (which  wa.s  registered 
as  a  trade  union)  wius  formed  {inter  alia)  to  consider  trade  and  wages,  I 

to  protect  the  workmen  and  regulate  the  relation  between  them  and  v^  ^^ 
employers,  and  to  call  conferences.  The  wages  were  paid  upon  a 
sliding  scale  agreement,  rising  and  falling  with  the  price  of  coal.^  [ry\^ 
In  Novemb(>r,  1900,  the  council  of  the  federation,  fearing  that  the 
action  of  merchants  and  middlemen  would  reduce  the  price  of  coal 
and  consequently  the  rate  of  wages,  resolved  to  order  a  "stop-day" 
on  November  9,  and  informed  the  workmen.  This  order  was  obeyed 
by  over  100,000  men,  who  took  a  holiday  and  thereby  broke  their 

'  Accord:  Leonard  v.  Whitestone,  34  Ind.  App.  383;  Guida  v.  Pontrelli.  114 
Misc.  (N.  Y.)  181,  186  N.  Y.  Supp.  147.  See  Pollock,  Torts  (8th  ed.),  p.  329; 
Cooley,  Tort.s  (2d  ed.),  p.  227. 

In  Smithies  r.  Nat' 1  .\s.s'n  of  Operative  Plasterers,  [19091  1  K.  B.  310,  Buckley, 
L.  J.,  at  page  337  .Siiys:  "But,  hi.stly,  it  is  said  that  the  act  was  justified.  No 
doubt  there  are  circumstances  in  which  A  is  entitled  to  induce  B  to  break  a  con- 
tract entered  into  by  B  with  C  Thus,  for  instance,  if  the  contract  Ix'tween  B  and 
C  is  one  which  B  could  not  make  consistently  with  his  preceding  contnictual 
obligations  towards  .\,  .\  may  not  only  ind\ice  him  to  break  it,  but  may  invoke 
the  assistance  of  a  coilrt  of  justice  to  make  him  break  it." 

Compare  I^egris  r.  .Marcotte,  129  111.  .Vjjp.  67  (action  to  protect  school  children 
from  expo.sure  to  di.sea.seK 

-  Clause  23  of  the  sliding  scale  agreement  reads  as  follows:  "  It  is  hereby  agreed 
that  all  notices  to  terminate  contracts  on  the  part  of  the  employers  as  well  ;is 
employed,  shall  l)e  javen  onfy  on  the  first  ilay  of  any  calemlar  muuth.  and  totex- 
mJnatc  on  tiie  last  dav  of  the  .same  month."  —  Ed 


Ka.<U^ 


WOL 


^?v^ 


172  LEGALITY   OF   MEANS   USED  [CH.\P.  IV 

contracts  of"  service.  At  a  conference  held  on  November  12  between 
delegates  of  the  men  and  the  council  a  resolution  was  passed  au- 
thorizing the  council  to  declare  a  general  hoUday  at  any  time  they 
might  think  it  necessary  for  the  protection  of  wages  and  of  the  in- 
dustry generally.  In  October  and  November,  1901,  the  council  (as 
Bigham,  J.,  found)  ordered  four  stop-days  for  the  same  reason  as 
before,  and  the  men  took  a  holiday  on  each  of  those  days  in  breach 
of  their  contracts.^    .  .  . 

Bigham,  J.,  concluded  his  findings  of  fact  with  the  following 
statement:  "The  evidence  satisfies  me  that  the  action  of  the  fed- 
eration, and  of  the  other  defendants  in  1901,  was  dictated  by  an 
honest  desire  to  forward  the  interest  of  the  workmen,  and  was  not, 
in  any  sense,  prompted  by  a  wish  to  injure  the  masters.  Neither  the 
federation  nor  the  other  defendants  had  any  prospect  of  personal 
gain  from  the  operation  of  the  stop-days.  Having  been  requested 
by  the  men  by  the  resolution  of  November  12,  1900,  to  advise  and 
direct  them  as  to  when  to  stop  work,  the  federation  and  the  other 
defendants,  who  were  its  officers,  in  my  opinion,  did  to  the  best  of 
their  ability  advise  and  direct  the  men.  Whether  they  advised  them 
wisely  I  cannot  say,  though  I  am  inclined  to  think  not.  But  I  am 
satisfied  that  they  advised  them  honestly,  and  without  malice  of  any 
kind  against  the  plaintiffs. 

"  I  have  to  decide,  in  these  circumstances,  whether  an  action  in 
tort  will  lie  against  the  defendants.  The  advice  and  guidance  of  the 
defendants  was  solicited  and  given.  If  followed,  it  involved,  as  the 
defendants  knew,  the  breaking  of  the  subsisting  contracts.  It  was 
followed,  as  the  defendants  wished  it  should  be,  and  damage  re- 
sulted to  the  masters;  but  there  was  no  malicious  intention  to  cause 
injury,  no  profit  was  gained  for  themselves  by  the  defendants,  and 
their  sole  object  was  to  benefit  the  men,  whom  they  were  advising 
and  directing."  ^  .  .  . 

Bigham,  J.,  accordingly,  holding  that  the  defendants  had  lawful 
justification  or  excuse  for  what  they  did,  gave  judgment  for  the  de- 
fendants. This  decision  was  reversed  by  the  Court  of  Appeal  (Ro- 
mer  and  Stirling,  L.JJ.,  Vaughan  Williams,  L.  J.,  dissenting),  who 
entered  judgment  for  the  plaintiffs,  the  damages  to  be  assessed.  .  .  . 

Lord  Macnaghten.^  ...  It  is  not  disputed  now  —  it  never  was 
disputed  seriously  —  that  the  union  known  as  the  South  Wales 
Miners'  Federation,  acting  by  its  executive,  induced  and  procured 
a  vast  body  of  workmen,  moml^ers  of  the  union,  who  were  at  the 
time  in  the  employment  of  the  plaintiffs,  to  break  their  contracts  of 

1  In  accordance  with  a  vote  taken  on  Oct.  23, 1901,  a  "  manifesto"  to  the  work- 
men had  been  issued,  statinp;  that  it  had  boon  resolved  that  the  workmen  should 
obsrrve  as  general  holidays  the  following  Friday  and  Saturday.  Subsequently 
two  other  stop-days  were  ordered,  i.  e.,  Oct.  31  and  Nov.  6.  —  En. 

2  'Hiis  rpiotation  is  taken  from  the  report  of  the  c-aso  in  [1903]  2  K.  B.  .5.'i().  —  Ed. 
'  The  opinion  of  the  Earl  of  Halsbury,  L.  C,  in  favor  of  dismissing  the  appeal 

is  omitted.  —  Ed. 


SECT.  II]  INDUCING   BREACH    OF   CONTRACT  173 

service,  and  thus  the  federation  acting  l)y  its  executive  knowingly 
and  intentionally  inflicted  pecuniary  loss  on  the  plaint ifTs.  It  is  not 
disputed  that  the  federation  conunitted  an  actionable  wrong.  It  is 
no  defence  to  say  tiiat  there  was  no  malice  <»r  ill-will  against  the 
masteni  on  the  part  of  the  federation  or  on  the  part  of  the  workmen 
at  any  of  the  colli(!ries  thrown  out  of  work  by  the  action  of  the  feder- 
ation. It  ia  scttl(;^d  now_t_liat  malice  iji.the  se^ge^of  spit<'  or  ill-will  is 
not  tliegist~of  sucli  an  action  as^jliat  whijeh.  Jjie  plajntifTs  liiiye  in- 
gtTtutecr  StiTTless  islTa  defence  to  say  that  if  t lie  masters  luul  only 
known  Iheir  own  interest  they  would  have  welcomed  th(,'  interfer- 
ence of  the  federation. 

It  was  argued  —  and  that  was  the  only  argument  —  that  although 
the  thing  done  was  yrivia  facie  an  actional)le  wrong,  it  was  justifiable 
under  the  circumstances.  That  there  may  be  a  justification  for  that 
which  in  itself  is  an  actionable  wrong  I  do  not  for  a  moment  doubt. 
And  I  do  not  think  it  would  be  difficult  to  give  instances  putting 
aside  altogether  cases  complicated  by  the  introduction  of  moral  con- 
siderations. But  what  is  the  alleged  justification  in  the  present  ca.se? 
It  was  said  that  the  council  —  the  executive  of  the  federation  —  had 
a  duty  cast  upon  them  to  protect  the  interests  of  the  members  of  the 
union,  and  that  they  could  not  be  made  legally  responsil)le  for  the 
consequences  of  tlieir  action  if  they  acted  honestly  in  good  faith  and 
without  any  sinister  or  intlirect  motive.  The  ca.se  was  argued  with 
equal  candour  and  ability.  But  it  seems  to  me  that  the  argument 
may  be  disposed  of  by  two  simple  questions.  How  was  the  duty 
created?  What  in  fact  was  the  alleged  duty?  The  alleged  duty  was 
created  by  the  members  of  the  union  themselves,  who  elected  or 
appointed  the  officials  of  the  union  to  guide  and  direct  their  action; 
and  then  it  was  contended  that  the  body  to  whom  the  members  of 
the  union  have  thus  conunitted  their  individual  freedom  of  action 
arc  not  responsilile  for  what  the}-  do  if  they  act  according  to  their 
honest  judgment  in  furtherance  of  what  they  consider  to  be  the 
interest  of  their  constituenrts.  It  seems  to  me  that  if  that  plea  were 
admitted  there  would  be  an  end  of  all  rcsponsi])ility.  It  would  l^e  idle 
to  sue  the  workmen,  the  individual  wrong-doers,  even  if  it  were 
practicaiile  to  do  so.  Their  counsi^llors  and  protectors,  the  real  au- 
thors of  the  mischief,  would  be  safe  fiom  legal  proceedings.  The  only 
other  question  is,  What  is  the  alleged  duty  set  up  by  the  federation? 
I  do  not  think  it  can  be  l)etter  described  than  it  was  by  Mr.  Lush. 
It  comes  to  this  —  it  is  the  duty  on  all  proper  occasions,  of  which 
the  federation  or  their  officials  are  to  be  the  sole  judges,  to  counsel 
and  procure  a  breach  of  duty. 

I  agree  with  Romer  and  Stirling,  L.  .1.1.,  and  I  tiiink  the  app<'al 
must  be  (lisniLs.scd.   .   .   . 

Loud  Ja.mes.  .  .  .  At  the  trial  ;ind  at  the  bar  of  your  Lordships' 
House  the  counsel  for  the  appellants  contended  that  their  clients 
had  good  cause  and  excuse  for  the  alleged  unlawful  act  they  com- 


174  LEGALITY   OF   MEANS   USED  [CHAP.  IV 

mitted.  That  such  justification  —  such  "good  cause  and  excuse"  — 
may  exist  is,  I  think,  a  sound  proposition.  .  .  .  The  facts  upon 
which  this  attempted  justification  in  this  case  is  based  are  fully  be- 
fore your  Lordships  and  need  not  be  recapitulated.  I  take  the  re- 
sults of  them  to  be  that  in  one  sense  the  defendants  acted  in  good 
faith.  They,  I  think,  honestly  believed  that  the  stoppage  of  work 
they  resolved  upon  would  increase  the  price  of  coal  and  so  benefit 
both  the  workmen  and  the  employers.  Towards  their  employers 
the  defendants  entertained  no  malice.  At  the  same  time  they  knew 
that  the  employers  had  given  notice  of  their  objection  to  any  such 
stoppage  of  work.  And  so  the  federation  not  only  advised,  but  re- 
solved and  ordered  that  the  workmen  should  break  their  contracts 
under  conditions  that  would  constitute  an  unlawful  act  in  the  men. 
As  far  as  the  defendants  could  exercise  control  the  men  were  not 
allowed  to  make  use  of  their  own  discretion.  In  order,  therefore,  to 
establish  the  existence  of  good  cause  and  excuse  all  the  defendants 
can  say  is,  "We,  the  federation,  had  the  duty  cast  upon  us  to  advise 
the  workmen.  We  did  advise  them  to  commit  an  unlawful  act,  but 
in  giving  that  advice  we  honestly  believed  that  they  would  be  in  a 
better  financial  position  than  if  they  acted  lawfully  and  fulfilled  their 
contracts."  Even  if  it  be  assumed  that  such  allegations  are  correct 
in  fact,  I  think  that  no  justification  in  law  is  established  by  them. 
The  intention  of  the  defendants  was  directly  to  procure  the  breach 
of  contracts.  The  fact  that  their  motives  were  good  in  the  interests 
of  those  they  moved  to  action  does  not  form  any  answer  to  those 
who  have  suffered  from  the  unlawful  act.  During  the  arguments 
that  have  been  addressed  to  your  Lordships  I  do  not  think  quite 
sufficient  distinction  was  drawn  between  the  intention  and  the  mo- 
tives of  the  defendants.  Their  intention  clearly  was  that  the  work- 
men should  break  their  contracts.  The  defendants'  motives,  no 
doubt,  were  that  by  so  doing  wages  should  be  raised.  But  if  in  carry- 
ing out  the  intention  the  defendants  purposely  procured  an  unlaw- 
ful act  to  be  committed,  the  wrong  that  is  thereby  inflicted  cannot 
be  obliterated  by  the  existence  of  a  motive  to  secure  a  money  benefit 
to  the  wrong-doers. 

For  these  reasons  I  think  the  judgment  of  the  Court  of  Appeal 
should  be  affirmed. 

Lord  Lindley.  .  .  .  The  appellants'  counsel  did  not  deny  that, 
in  his  view  of  the  case,  the  defendants'  conduct  required  justifica- 
tion, and  it  was  contended  (1)  that  all  which  the  officials  did  was  to 
advise  the  men,  and  (2)  that  the  officials  owed  a  duty  to  the  men  to 
advise  and  assist  them  as  they  did. 

As  regards  advice,  it  is  not  necessary  to  consider  when,  if  ever, 
mere  advice  to  do  an  unlawful  act  is  actionable  when  the  advice  is 
not  libellous  or  slanderous.  Nor  is  it  necessary  to  consid(M'  those 
cases  in  which  a  person,  whose  rights  will  be  violated  if  a  contract 
is  performed,  is  justified  in  endeavouring  to  procure  a  breach  of  such 


SECT.  II]  INDUCING    BREACH    OF   CONTRACT  175 

contract.  Nor  is  it  necos.sary  to  con.sidor  what  a  parent  or  guardian 
may  do  to  protect  his  child  or  ward.  That  there  are  cases  in  which 
it  is  not  actionable  to  cxhrjrt  a  person  to  break  a  contract  may  Ijc 
admitted;  and  it  is  very  difficult  to  draw  a  sharp  line  separating  all 
such  ca.ses  from  all  others,  Ikit  the  so-called  atlvic<*  here  wa.s  much 
more  than  counsel;  it  was  ac<-ompanied  b}'  orders  to  stop,  which 
could  not  be  disobeyed  with  impunity.  A  refu.sal  to  stop  work  as 
ordered  would  have  been  regarded  a.s  disloyal  to  the  federation.  This 
is  plain  from  tlu;  sp(M'ches  given  in  evidence  on  tin-  trial;  and  in  my 
opinion  it  is  a  very  important  clciiient  in  the  case  which  cannot  Ix? 
ignored. 

As  regards  duty  the  question  immediately  ari.ses — duty  to  do  what? 
Tlu'  defendants  hav<'  to  justify  a  particular  line  of  conduct,  which 
was  wrongful,  i.e.,  aiding  antl  abetting  the  men  in  tloing  what  both  the 
men  and  the  officials  knew  was  legally  wrong.  The  constitution  of 
the  union  may  hav(^  rendereii  it  the  duty  of  the  officials  to  advi.se  the 
men  what  could  be  legally  done  to  protect  their  own  interests;  but  a 
legal  duty  to  do  what  is  illegal  and  known  so  to  \w  is  a  contradiction 
in  terms.  A  similar  argument  wius  urged  without  success  in  the  case 
of  the  Friendly  Society  of  Stonemasons,  [1902]  2  K.  B.  732. 

Then  your  Lordships  were  invited  to  say  that  there  was  a  moral 
or  social  duty  on  tiu!  part  of  the  officials  to  do  what  they  did,  and 
that,  as  they  acted  bonn  fide  in  the  inten^st  of  the  men  and  without 
any  ill-will  to  the  employers,  their  conduct  was  justifiable;  and  your 
Lordships  were  asked  to  treat  this  case  as  if  it  were  like  a  case  of 
libel  or  slander  on  a  privileged  occasion.  My  Lords,  this  contention 
was  not  l)ased  on  authority,  and  its  only  merits  are  its  novelty  and 
ingenuity.  The  analogy  is,  in  my  opinion,  misleading,  and  to  give 
effect  to  this  contention  would  be  to  legislate  and  introduce  an  en- 
tirely new  law,  and  not  to  expound  the  law  as  it  is  at  present.  It 
would  be  to  render  many  acts  lawful  which,  as  the  law  stands,  are 
clearly  unlawful. 

My  Lords,  I  have  purxwsely  al)stained  from  using  the  word  "mal- 
ice."   Bearing  in  mind  that  malice  ina\^r  may  Hot_be  u.sed  to  de- 
note ill-wTIT7an(l  that  In^l?^|?anangriau'    im  -^uiii[)rrye^or  iniplietl  mal- 
i65^  distrnguishablcTrbin  express  malice,  it  conducesTo Clearness  m 
discussing  such  cases  as  these  to  drop  fhe  word  "nialice"  altogerher, 
and  to  substitute  fOf  it  the' meanIng~wTuc!ris  reaTTy  Intended  toJbe_ 
conveyed  byTtr' Its  use  maybe  necessarj' m  drawing  indictments^ 
bul  when  all  That  is  meant  by  malice  is~aninfention  to  conmiU  an_ 
unlawful  act   without  reference  to  spite  or~Tn-f(M'liiig.  If  is^^tter_tQ_ 
droj)  the  word  malice  and  so  avoid  alLinisimdersTlindluc^^ 
~TTie  appeal  ouglit  to  fSe  dlsnilssed  with  costs. 

Order  of  the  Court  of  Appeal  affirmed 
and  appeal  dismissed  wth  eosts.^ 

'  In  contrast  to  the  above  decision,  compare  the  remark--^  of  Baker.  J.,  in 
Iron    Moldors'    Union   r.  Alli.s-Ch:ilmers    Co.,    IGG    Fed.   4.'),  .TJ,   infra,  p.   199. 


176  LEGALITY   OF   MEANS   USED  [CHAP.  IV 

HITCHMAN  COAL  &  COKE  CO.  v.  MITCHELL 
Supreme  Court  of  the  United  States.     1917 

245  U.  S.  229 
See  infra,  p.  489,  for  a  report  of  the  case.' 

ENGLISH  TRADE  DISPUTES  ACT,  1906,  Section  3 
See  swpra,  p.  24,  for  the  text  of  the  Act.^ 

CLAYTON  ACT,  Section  20 
See  swpra,  pp.  145-146,  for  the  text  of  this  Section.^ 

BOSTON  GLASS  MANUFACTORY  v.  BINNEY 

Supreme  Judicial  Court  of  Massachusetts.     1827 

4  Pick.  425 

This  was  an  action  on  the  case,  charging  the  defendants  with  en- 
ticing from  the  plaintiffs'  employment  certain  workmen  skilled  in 
several  departments  of  glass-making,  and  taking  them  into  the  serv- 
ice of  the  defendants,  who  were  proprietors  of  a  glass  manufactory 
at  Lechmere's  Point  in  Cambridge. 

The  plaintiffs  proved  that  some  of  the  workmen  were  in  their  em- 
ployment until  the  day  when  they  were  engaged  in  the  employment 
of  the  defendants,  and  that  it  was  mutually  understood  that  neither 
party  should  withdraw  from  the  engagement  without  giving  a  fort- 
night's notice.  .  .  . 

One  of  the  men  supposed  to  have  been  enticed,  having  been  called 
as  a  witness  by  the  defendants,  testified  that  Parmenter,  one  of  the 
defendants,  agreed  with  him,  the  day  after  he  had  given  notice  to 
the  plaintiffs  that  he  should  leave  their  service  in  a  fortnight,  to  re- 
ceive him  into  the  defendants'  works;  and  it  appeared  that  this  man^ 
and  another  who  was  called  by  the  defendants,  received  pay  from 
the  defendants  for  the  last  fortnight  while  they  were  under  pay  from 
the  plaintiffs;  but  it  did  not  appear  that  any  offer  was  made  before 
notice  had  been  given,  and  the  men  remained  with  the  plaintiffs  until 
the  fortnight  after  notice  had  expired. 

The  defendants  contended  that  they  had  a  right  to  make  a  bar- 
gain with  the  men  during  the  continuance  of  their  service  with  the 

See  also,  Citizens'  Light,  Heat  &  Power  Co.  v.  Montgomery  Light  &  Water  Power 
Co.,  171  Fed.  553,  560-5(51. 

'  For  a  judicial  interpretation  of  this  legislation,  see  Conway  v.  Wade,  [1908] 
2  K.  H.  844. 

^  As  to  whether,  aftt^r  the  passage  of  the  Clayton  Act,  a  federal  court  may 
isfsue  an  injunction  to  enjoin  union  officers  from  calling  a  strike  in  breach  of  con- 
tract, see  Kinloch  Telephone  Co.  v.  Local  Union  No.  2,  265  Fed.  312,  275  Fed. 
241. 


SECT.  II]  INDUCING   BREACH    OF   CONTRACT  177 

plaintiffs,  to  take  etTcct  only  after  the  expiration  of  that  service  a<'- 
cordiriK  to  notice.  But  the  chief  justice  instructed  tlie  jury,  that 
while  the  actual  eniploynient  contimied,  tiiou^h  after  the  notice  to 
quit,  it  was  not  lawful  for  the  defendants  to  make  any  bargain  or  any 
offer  of  employment  to  take  effect  at  a  future  time,  and  that  if  the 
jury  believeil  the  witness,  they  nuist  return  a  verdict  against  Par- 
menter,  and  such  others  of  tiie  defendants  a.s  they  should  U.*  satis- 
fied participated  in  the  transaction. 

A  verdict  Wii-s  fomul  for  the  defendants.  ...  If  the  foregoing 
instruction  to  the  jury  was  correct,  the  Court  were  to  judge  whether 
a  new  trial  should  l>e  granted  on  account  of  the  verdict's  Ix-ing  against 
the  evidence  on  that  point.  .  .  . 

Wilde,  J.'  .  .  .  We  are  of  opinion  that  the  verdict  is  right.  The 
evidence  is  clearly  insufficient  to  support  the  action,  as  we  under- 
stand th(^  law.  The  defendants  had  a  legal  right  to  make  a  contract 
with  the  plaintifTs'  labourers  to  take  ejTect  after  the  expiration  of 
their  term  of  service  with  the  plaintiffs.  The  law  is  laid  down  cor- 
rectly by  Lord  Kenyon,  in  the  case  of  Nichol  et  al.  v.  Martyn,  2 
Esp.  Rep.  732,  that  "to  induce  a  servant  to  leave  his  master's  serv- 
ice at  the  expiration  of  the  time  for  which  the  servant  had  hired 
himself,  although  the  servant  had  no  intention  at  the  time,  of  cjuitting 
his  master's  service,  was  not  the  subject  of  an  action."  It  is  damnum 
absque  injuria.  The  cases  cited  by  the  plaintiffs'  counsel  do  not 
countenance  a  different  doctrine.  If  the  law  were  otherwise,  it  would 
lead  to  the  most  mischievous  consecjuences,  and  would  operate  in- 
juriously both  to  labourers  and  their  employers. 

Judgment  according  to  the  verdict.^ 


THACKER  COAL  CO.  i-.  BURKE 

Supreme  Court  of  Appeals  of  West  Virginia.     1906 

59  W.  Va.  253 

Brannon,  J.  The  Thacker  Coal  and  Coke  Co.  filed  a  declaration 
in  trespass  on  the  case  in  the  Circuit  Court  of  Mingo  county  against 
Charles  Burke  and  five  others  for  damage  for  enticing  servants  from 
the  plaintiff's  service,  which  declaration  upon  denuirrer  was  dis- 
missed, and  the  company  sued  out  a  writ  of  error. 

Certain  legal  principles  control  the  case.  In  Transportation  Co, 
r.  Oil  Co.,  .')()  W.  Va.  (ill,  we  find  it  stated,  on  authority  there  given, 
that  "If  one  wantjmly  and  malinoijsh  ,3Jiether  for  his  own  i)enefit 
or  not,  nuluces  a  person  Jo  violate  hiscontract  with  a  third  person 
to  the  TttJury^oTttat  tHird  person,  itls^actlonable . 

'  A  portion  of  fho  opinion  dealing  with  another  matter  i.s  omitted.  —  Ed. 
*  Accord:    CainphcU  v.  Cooper,  M  N.  H.  4'.>;    Nichol  v.  Martyn,  2  Esp.  732 
(semble). 


JXJI 


J^  jJAA^i-AJUL 


yL^      d^>^tv^^     A^c^Ul 


178 


LEGALITi'   OF   MEANS   USED 


[CHAP.  IV 


We  find  that  holding  confirmed  in  Anglo  v.  Chicago  Railway, 
161  U.  S.  1,  in  the  language  following:  "If  one  maliciously  inter- 
feres in  a  contract  between  two  parties,  and  induces  one  of  them  to 
break  that  contract  to  the  injury  of  the  other,  the  party  injured  can 
sustain  an  action  against  the  wrongdoer.  When  a  man  does  an  act 
which  in  law  and  fact  is  a  wrongful  act,  and  injury  to  another  results 
from  it  as  a  natm'al  and  probable  consequence,  an  action  on  the  case 
will  lie."  ... 

The  first  count  of  the  declaration  alleges  that  the  company  is 
owner  and  operator  of  a  coal  mine,  and  was  engaged  on  the  8th  day 
of  August,  1901,  in  the  business  of  mining  coal  from  the  mine;  that 
in  order  to  cany  on  the  business  it  was  necessary  for  the  plaintiff 
to  employ,  and  it  did  employ,  a  large  number  of  men  to  work  in  the 
mine,  who  were  engaged  in  the  company's  service  in  working  the 
mine  and  loading  coal  on  railroad  cars  for  shipment  to  parties  with 
whom  the  plaintiff  had  contracts  to  furnish  coal;  that  the  defend- 
ants well  knowing  these  facts,  but  contriving  and  wickedly  and  ma- 
liciously intending  to  injure  the  plaintiff  in  its  business,  unlawfully, 
wrongfully,  maliciously,  without  justifiable_cause,  without  the  con- 
sent and  against  the  will  of  the  plaintiff,  molested,  obstructed  and 
hindered  the  plaintiff  in  its  said  business  "by  wilfully,  wrongfully 
and  maliciously  persuading,  inducing,  enticijog^  ah3~procuring_sard 
sgi^^ts^  of  thaZplaJntiff^employed  as  aforesaid,  to  absent  them- 
selves and  depart  from  the  plaintiff's  service";  that  on  pretext  and 
by  reason  of  such  persuasion,  enticement  and  procuration  the  said 
servants  on  the  date  aforesaid,  without  license  and  against  the  will 
and  consent  of  the  plaintiff,  wrongfully  absented  themselves  and 
departed  from  said  service,  and  continued  to  do  so;  that  the  plain- 
tiff was  unable  to  employ  other  servants  to  work  in  its  mine  in  the 
place  of  the  servants  so  enticed  away,  and  was  thereby  prevented 
from  prosecuting  and  carrying  on  its  business  as  extensively  and 
profitably  as  it  could  and  would  have  done,  had  not  its  servants  been 
I  induced  and  enticed  by  the  defendants  to  quit  its  service. 

The  first  count  does  not^_Jp.^^ords,st£tean_^^  for 

seryicebetweon  empToy^r^  By]The^2£2SU2:i£_ii?^^'i 
thejjooks  a  comfartrSusr"cxist.  This  count  says  the  miners  were 
'^^employed"  by  the  plaintiff  and  in  actual  s(>rvice.  Now,  if  the  law 
gives  action  for  enticement  of  a  servant,  it  is  not  conceivable  that  a 
third  person  can  maliciously  entice  away  a  lot  of  employees,  simply 
because  there  was  no  contract  fixing  term  of  service.  The  relation 
of  master  and  servant  exists.  In  such  case  there  is  a  contract  rec- 
ognized ))y  law,  an  implied  contract  ])y  wiiich  the  (Miiployee  can  re- 
cover for  his  service.  By  entering  such  service  the  employee  agrees, 
contracts  to  work.  It  is  no  difference  that  he  can  quit  when  he 
pleases.  In  Walker  v.  Cronin,  107  Mass.  555,  was  such  a  count  and 
the  court  held  it  good.    Frank  v.  Heroldi_03  N^.  Eq.  443,  meets 


SECT.  II]  INDUCING    BUEACIl    OF   CONTRACT  17'J 

this  objection.    It  says:    "To  make  out  the  relation  of  master  and 
servant,  it  is  not  necessary  that  there  be  any  written,  or  even  verbal,  ^ 
contract  between  the  i)arties  to  work  for  any  [)articular  length  '^f  /  "T)  •  / 
time,  l)ut  tlie  relation  exists  where  one  person  is  willing  to  work  for/    '^^     ^^ 
another  from  day  to  day,  and  that  other  desires  the  laU)r  and  makes  V 
his    business    arranK<'Ui('nts    accordingly.     Employers,    where    third   \ 
parties  in'terfcre  with  their  employees  against  the  latter's  consent,     1 
and  (mdcvivor  l)y  unlawful  means  to  induce  them  U)  quit  work,  have     1 
a  right  to  sue  for  relief."  ...    A  party  cannot   have  a  justifiable    I 
cause  to  instigate,  to  move,  the  breach  of  a  contract  Ix'twecn  mas- 
ter and  servant.     We  repeat  that  the  law  says  that  where  there  is 
such  a  contract  and  a  third  party  causes  its  violation,  he  is  liable  to 
an  aj'tion.    We  do  not  have  to  say  whether  if  the  interference  is  with- 
out malice  it  is  acti()nal)le,  since  the  declaration  avers  a  knowledge 
by  the  defendant  of  the  existence  of  the  contract,  and  avers  that 
they  maliciously  and  wrongfully  caused  its  breach.    We  do  not  deny 
the  principh^  that  a  man   may  do  an  act  damaging  another,  even 
maliciously,  when  he  has  legal  excuse  or  justification  therefor;    but 
we  say  that  when  his  action,  with  knowledge  on  his  part  of  a  con- 
tract, causes,  by  intention,  a  breach  of  that  contract,  he  is  liable  to 
damages  even  though  he  acts  for  the  promotion  of  his  own  interest. 
But  in  the  present  case  the  declaration  avers  that   the  tiefendants 
had  no  justification.     It   does  not   intimate  that  their  action  was 
moved  by  a  purpose  to  ix'nefit  their  own  business,  their  own  trade, 
their  own  interest  in  any  shape.    On  the  contrary  it  avers  that  their 
action  was  characterized  by  a  wilful  intent   to  injure  the  plaintiff 
without  justifiable*  cause.    If  they  had  justifial)le  cause  for  their  ac- 
tion the  declaration  does  not  speak  it,  and  we  are  governed,  on  de- 
murrer, by  the  declaration.    Therefore^  wt  hold  that  the  first  count 
oLlhe  dgclaratioii  states  a jgiise^of  actjon.    We,  however,  say  thatH 
is  deTective  in  not~speci]ying  the  servants  who  were  enticed. 

The  second  count  alleges  that  the  plaintiff  to  secure  miners  from 
other  states  made  special  written  contracts  with  certain  miners, 
to  wit:  "William  Linder  and  eight  others,  residents  of  North  Caro- 
lina, whereliy  these  miners  agree  to  come  to  plaintiff  and  enter  into 
service  and  engage  in  digging  and  shipjMng  coal  from  its  mine  at  a 
certain  fixed  rate  per  ton,"  specifying  the  rate,  and  that  the  com- 
pany paid  their  fares  of  SI  1.50  each  from  North  Carolina  to  tiie 
mine  under  contract  witli  the  miners  that  the  fares  were  to  Im-  re- 
paid the  plaintifT  out  of  the  wages  earned  by  the  miners  in  mining 
for  the  plaintiff;  that  on  the  arrival  near  the  mine  the  defendants, 
knowing  of  such  contract,  wrongfully,  maliciously  and  with  unlaw- 
ful pur|W)se  to  injure  the  busin(>ss  of  the  plaintiff  and  against  the 
consent  of  the  plaintiff,  induced  and  enticed  said  miners  to  break 
their  several  contracts  of  service  and  refuse  to  outer  the  .service  of 
the  plaintiff  according  to  the  written  contract,  and  ix-rsuaded  and 


180  LEGALITY   OF   MEANS   USED  [CHAP.  IV 

induced  and  enticed  them  to  depart,  and  that  by  reason  of  said  per- 
suasion and  enticement  said  miners,  engaged  under  said  written 
contract,  wholly  failed  and  refused  to  perform  their  contracts  and 
enter  the  service  of  the  plaintiff,  and  immediately  departed  from 
the  place  where  they  were  emplo3^ed  to  work  without  having  en- 
tered the  service  of  the  plaintiff  and  without  having  paid  the  plain- 
tiff the  money  advanced  for  said  railroad  fare,  and  that  none  of  the 
miners  have  returned  to  work  in  the  said  mine.  Under  the  prin- 
ciples stated  above  this  count  shows  a  good  cause  of  action. 

A  third  count  alleges  that  the  plaintiff  being  such  operator  of 
a  coal  mine  made  a  written  contract  with  Samuel  Bowean  whereby 
Bowean  contracted  to  mine  for  the  plaintiff  five  hundred  tons  of 
coal,  and  Bowean  had  entered  upon  the  performance  of  the  con- 
tract, and  that  the  defendants  knowing  of  such  contract,  unlawfully, 
wrongfully,  maliciously  and  with  unlawful  purpose  to  injure  the 
business  of  the  plaintiff,  induced  and  enticed  Bowean  to  break  and 
disregard  the  contract,  and  that  Bowean,  by  reason  of  such  entice- 
ment, broke  and  refused  to  execute  the  contract.  Under  principles 
above  stated  this  count  shows  a  good  cause  of  action. 

A  fourth  count  saj^s  that  the  plaintiff,  being  owner  and  operator 
of  such  coal  mine,  made  special  written  contracts  with  Alvin  Hunter 
and  other  persons  named,  whereby  each  one  of  them  obligated  him- 
self to  mine  for  the  plaintiff  a  certain  fixed  amount  of  coal  at  a  specified 
rate  per  ton;  that  said  Hunter  and  others  had  actually  started  upon 
the  performance  of  their  contracts,  that  the  defendants  well  knowing 
thereof,  contriving  and  falsely  and  maliciously  intending  to  injure, 
vex,  harass,  oppress,  impoverish  and  wholly  ruin  the  plaintiff  in  its 
business,  unlawfully  and  maliciously  did  agree,  confederate,  com- 
bine and  form  themselves  into  a  conspiracy  to  persuade,  entice  and 
procure  Hunter  and  others  named  to  violate,  break  and  wholly  dis- 
regard their  contracts  with  the  plaintiff;  that  the  defendants  having 
so  conspired  and  confederated  under  the  name  of  the  "United  Mine 
Workers  of  America,"  contriving  and  intending  as  aforesaid,  in  pur- 
suance and  execution  of  their  conspiracy,  on  a  day  named,  un- 
lawfully, wantonly,  wrongfully  and  maliciously,  without  justifiable 
cause,  and  against  the  will  of  the  plaintiff,  molested,  obstructed  and 
hindered  the  plaintiff  in  its  business  of  mining  and  shipping  coal  by 
wilfully,  wantonly,  wrongfully  and  maliciously  persuading,  enticing 
and  procuring  Hunter  and  the  others  named  to  break,  violate  and 
disregard  their  contracts,  and  that  on  pretext  and  because  of  such 
persuasion.  Hunter  and  others,  against  the  will,  and  without  the 
consent  of  the  plaintiff,  without  eaus(%  violated  their  contracts  by 
refusing  to  continue  tlicir  work  of  mining  coal  as  re(iuired  l)y  their 
contracts,  and  have  not  performed  their  contracts.  Under  principles 
above  stated  this  count  shows  a  good  cause  of  action.  Employing 
Club  V.  Doctor  Blosser  Co.,  50  S.  E.  353.  .  .  . 


SECT.  Ill]  VIOLENCE  —  INTIMIDATION  181 

We,  therefore,  reverse  the  judKnicnt,  (neirule  the  demurrer,  ex- 
cept as  to  tlie  first  count,  and  remand  tlie  ca.se  to  the  Circuit  Court 
for  further  proceedings,  with  leave  to  amend  the  first  count  of  the 
declaration.  Ueversed.^ 


Section  3.     Violence,  I nliynidation 

REGINA  V.  DIM  riT 

Central  Criminal  Coiut.     l.S(j7 

10  Cox  C.  C.  592 

Indictment  for  conspirin^^,  by  unlawful  ways,  contrivances,  and 
strataj^euis,  to  impoverish  Henry  Poole  and  others  in  their  trade 
and  business,  and  to  restrain  the  freedom  of  trade  and  of  personal 
action.  .  .  . 

The  defendants  were  members  of  a  tailors'  trade  union,  which  wa.s 
deniandiiifi;  from  their  employers  increased  wages.  At  a  union  meet- 
ing heltl  to  dis(;uss  wiuit  action  should  be  tak(Mi,  and  atti.'nded  by 
the  defendants  Druitt,  Adamson,  and  Lawrence,  Druitt  acted  as 
president,  Law'rence  was  the  vice-president,  and  Adam.son  took  an 
active  part  in  the  proceedings.  After  an  address  by  Druitt,  it  wa.s 
decided  to  declare  a  strike,  and  to  carrj'  out  the  strike  by  a  isy^item 
of  pi^jketing  to  dissuade  other  workmen,  not  members  of  the  union, 

»  In  Allen  v.  Flood,  [1898]  \.  C.  1,  at  page  121,  Lord  Herschel,  discussinR  the 
decision  in  Teiniwrton  r.  Russell  said:  "It  seems  to  have  lx;en  regarded  as  only 
a  small  stc()  from  the  one  decision  to  the  other,  and  it  \V!is  said  that  there  seemed 
to  lie  no  good  retuson  why  if  an  action  lay  ior  maliciously  inducing  a  breach  of  con- 
tract, it  should  not  ecjually  lie  for  maliciously  inducing  a  j>erson  not  to  enter  into 
a  contract.  So  far  from  thinking  it  a  small  step  from  the  one  decision  to  the  other, 
I  think  there  is  a  chasm  lictween  them."  See  also,  Loring,  J.,  in  Beekman  c. 
Marsters,  19.5  Ma.ss.  20.5  at  211. 

The  early  New  York  courts  seemed  to  assume  the  existence  of  a  right  of  action 
for  the  enticement  of  servants  hound  by  no  contract.  But  the.se  ca.ses  have  long 
since  l)een  overruled.  Johnston  Harvester  Co.  v.  Meinhardt,  tiO  How.  Pr.  1G8 
(atfd.  in  24  Hun.  489);  Rogers  v.  Evarts,  17  X.  V.  Supp.  2t)4  (affd.  144  N.  Y.  189). 
New  Jersey  and  a  few  southern  states  apparently  still  accept  the  doctrine  sug- 
gested in  the  principal  c:i,se.  See,  for  instance,  Frank  v.  Herold,  1)3  N.  J.  Efj.  443, 
450.    Outside  of  the.se  the  doctrine  finds  but  little  .support. 

It  seems  difficult  to  defend  the  dictum  of  Pitnc>',  J.,  in  Hitchmau  Coal  Co.  r. 
.^tchell,  24.5  l\  S.  229_;it  252.  In  .\merican  Steel  l-oun'flhos  r.  The  Iri-l'ity 
Central  rra"desT!ouiuuTr2ortn  S.  —  (U.  S.  Sup.  Ct.,  Dec.  5,  1921),  Taft,  C.  j"., 
said:  "The  elements  es.sential  to  sustain  actions  for  |)ersuailing  employees  to  l&ive 
an  employer  are  first,  the  malice  or  ab.sence  of  lawful  excuse,  and,  .second,  the 
actual  injury.  The  effect  of  ca.ses  cited  as  authority  mu.st  Tx»  determined  by  an 
examination  of  the  pleadings  and  facts  to  see  how  the  malice  or  lack  of  lawful 
excu.se  wa.s  established,  and  whether  there  wa.s  not  illegality  pre.sent  in  the  means 
used.  Thus  Walker  v.  Cronin,  107  Ma.ss.  555,  and  Thacker  Coal  Co.  v.  Burke,  .59 
W.  Va.  2.53,  suits  by  an  employer  against  members  of  a  labor  union  in  which  the 
right  of  action  for  |)ersuading  was  sustained,  were  heard  on  demurrer  to  the  com- 
plaint. The  element  of  malice  wjus  supj^lied  by  averment  of  the  complaint,  and 
was,  of  course,  admitted  by  the  demurrer." 


^ 


182  LEGALITY   OF   MEANS   USED  [CHAP.  IV 

from  filling  the  places  left  vacant  by  the  strikers.  This  plan  was 
accordingly  carried  out.  The  consequence  of  the  picketing  was  that 
every  door  of  the  masters'  shops  was  besieged;  every  person  who 
entered  was  watched,  and  every  one  who  left  the  shop  was  followed. 
According  to  the  prosecution,  "  the  picket  of  six  not  infrequently  ac- 
cumulated to  400  and  500."  According  to  the  testimony  of  Joseph 
Lambert,  a  pensioned  sergeant  of  the  police,  all  the  workmen  emerging 
from  the  shops  were  insulted,  and  called  curs,  cowards,  and  "dungs" 
by  the  pickets,  and  followed  until  the  workers  were  met  by  other 
pickets  who  would  in  turn  follow  them.  Lambert  further  deposed 
that  "In  the  evening,  the  pickets  mustered  '  all  hands  '  opposite  the 
shops,  and  would  say  as  each  man  left  work,  '  There  he  comes,  the 
coward.'  '  Is  not  he  a  dung?  '  '  That's  him.'  The  men  had  been 
afraid  to  go  away  by  themselves,  and  he  accompanied  them  for  about 
three-quarters  of  a  mile.  ,  .  .  He  had  seen  all  the  defendants,  with 
the  exception  of  Lawrence,  Adamson,  and  Druitt,  on  picket  duty  in 
the  morning,  at  the  middle  of  the  day,  and  in  the  evenings  when 
those  crowds  had  been  collected  and  bad  language  used."  ^ 

Bramwell,  B.,  to  the  jury.  A  great  number  of  irrelevant  topics 
had  been  introduced  into  the  inquiry  in  which  they  were  engaged. 
All  the  talk  they  had  heard  about  the  struggle  of  capital  against 
labour  was  quite  misplaced,  and  the  censure  passed  on  the  masters 
in  respect  to  the  lock-out  was  perfectly  idle.  The  men  had  a  perfect 
right  to  strike,  and  if  the  whole  body  of  the  men  struck  against  the 
masters,  why  should  not  the  whole  body  of  masters  strike  against 
the  men?  The  jury  had  heard  a  good  deal  about  the  power  of  the 
State,  but  the  power  of  the  State  was  no  more  brought  against  these 
men  than  it  was  used  in  their  favour.  The  question  was  whether  they 
were  guilty  of  the  particular  offence  with  which  they  were  charged. 
The  jury  had  to  consider  —  no  matter  whose  interests  might  be 
affected  —  whether  the  defendants  had  done  that  which  was  illegal. 
He  would  address  a  few  general  observations  to  them,  some  of  which 
might  appear  to  be  truisms.  Wlicn  the  law  gave,  or  rather  acknowl- 
edged, a  right,  it  provided  a  punishment  or  a  remedy  for  the  vio- 
lation of  that  right.  That  was  a  cardinal  rule,  and  an  obvious  one. 
The  old  expression  that  "there^wag  no  wrong,jidthouta^jiiined^' 
might  also  l)e  interpreted  to  mcantKat  tlicnTTvas  also  no  right  with- 
out a  remedy.  Sometimes  the  remedy  was  by  a  criminal  proceed- 
ing, sometimes  by  a  civil  action,  sometimes  by  both.  Having  made 
those  general  remarks,  he  would  make  another,  which  was  also 
familiar  to  all  Englishmen  —  namely,  that  there  was  no  right  in  this 
country  under  our  laws  so  sacred  as  the  right  of  personal  liberty. 
No  right  of  property  or  capital,  about  which  there  had  been  so  much 
declamation,  was  so  sacred  or  so  carefully  guarded  by  the  law  of  this 
land  as  tliat  of  personal  liberty.    They  were  (juite  aware  of  the  pains 

'  The  stafomont  of  facts  has  been  framed  from  the  arguments  of  counsel.  — 
Ed. 


SECT.  Ill] 


VIOLENCE  —  INTIMIDATION 


183 


taken  by  the  common  law,  by  the  writ,  a.s  it  was  called,  of  habeas 
corpus,  and  supplemented  by  statute,  to  secure  to  every  man  his 
personal  freedom  —  that  he  should  not  1m*  put  in  priscjn  without 
lawful  cause,  and  timt  if  he  was,  he  should  Ix-  brouj^ht  Ix'fore  a  com- 
petent magistrate  within  a  given  time  and  Ik?  set  at  liljerty  or  un- 
dergo punisluncnt.  Hut  that  lib<>rty  was  not  liberty  of  the  body  only. 
It  was  also  a  liberty  of  the  niindiuuljvni^;  and  the  lil)erty  of  a  man's 
nunrrann^wTll,T()l^ay^lu)wTTe  slKUiTd  bestow  himself  :ind  his  means, 
his  talents,  and  his  industry,  was  as  much  a  subject  of  the  law's 
protection  as  was  that  of  his  body.  Generally  sp<'aking,  the  way  in 
which  people  had  endeavoured  to  control  the  operation  of  the  minds 
of  men  was  by  putting  restraints  on  their  botiies,  and  therefore  we 
had  not  so  many  instances  in  which  the  liberty  of  the  mind  was  vindi- 
cated as  waa  that  of  the  body.  Still,  if  any  set  of  men  agreed  among 
themselves  to  coerce  that  liberty  of  mind  and  thought  by  compulsion 
and  restraint,  they  would  bo  guilty  of  a  criminal  offence,  namely, 
tliat  of  conspiring  against  the  liberty  of  niind  and  frewlomof  will 
of  those  towards  whom  they  so  conducted  thenlsel^T^^JIe^vas*^e'- 
ferring  to  coercion  or  compulsion — something  that  was  unpleasant 
and  annoying  to  the  mind  operated  upon;  and  he  laid  it  down  as 
clear  and  undoubt(Ml  law  that  if  two  or  more  persons  agreed  that  they 
would  by  such  means  coopeiate  together  against  that  liberty  they 
would  be  guilty  of  an  indictable  offence.  The  public  had  tni  int(x-— 
cstiii  th^]_wayinwhich  a  man  disposed  oj^]Tr?rm(Tustry  anclTus  ca^^ 
i^r  aiuTntTvo  or  "morJT^ersons  consi)ired'T)y  thivats.  nUiniidation,  V 
or  molestation  to  deter  or  influence  him  in  the  way  in  which  he  \ 
should  employ  his  industry,  his  talents,  or  his  capital,  they  would  / 
be  guilty  of  a  criminal  offence.  That  was  the  common  law  of  the 
land,  and  it  had  been  in  his  opinion  re-enacted  by  an  act  of  Parlia- 
ment, passofl  in  the  (ith  year  of  the  reign  of  CJeorg(>  l\,  which  pro- 
vided in  effect  that  anj'  p(>rson  who  should  by  threats,  intimida- 
tion, molestation,  or  any  other  waj'  obstruct,  force,  or  endeavour 
to  force,  any  journe>Tnan  to  depart  from  his  hiring,  or  prevent  any 
journeyman  from  hiring,  should  be  guilty  of  an  offence.  That  act 
was  passed  forty-on(^  years  ago,  and  by  a  statute  of  1859  it  was  en- 
acted that  no  workman  merely  by  reason  of  his  endeavouring  jK'ace- 
ably  and  in  a  reasonable  manner,  and  without  threat  or  intimidation, 
direct  or  indirect,  to  persuade  others  from  working  or  ceasing  to 
work  should  be  guilty  of  an  offence  under  the  former  act  of  Parlia- 
ment. In  other  words,  the  second  act  said  that  shoukl  not  U'  so  if 
they  did  what  they  did  in  a  reasonable  and  peaceful  manner  for  the 
purposes  of  persuasion.  Now,  the  defendanjs^were^  indictcd-4f>r 
cojispiring  together  to  do  thaf Which  was  in  opposition  to  the  law 
and  the  statutes  he  had  described.  .\t  the  outset,  he  could  not  help 
remarking  that  the  learned  ami  eminent  counsel  who  had  addressed 
the  jury  for  the  defendants  had  all  said  that  they  did  not  deny  that 
their  clients,  Druitt.  .\damsnn,  and  I,awrenc(^  had  agreed  that  there 


184  LEGALITY   OF   MEANS   USED  [CHAP.  IV 

should  be  pickets.  He  was  of  opinion  that  if  picketing  could  be  done 
in  a  way  which  excited  no  reasonable  alami,  or  did  not  coerce  or 
annoy  those  who  were  the  subjects  of  it,  it  would  be  no  offence  in 
law.  It  was  perfectly  lawful  to  endeavour  to  persuade  persons  who 
had  not  hitherto  acted  with  them  to  do  so,  provided  that  persuasion 
did  not  take  the  shape  of  compulsion  or  coercion.  What  was  the 
object  of  this  picketing?  Was  it  that  the  names  and  addresses  of  the 
non-striking  workmen  might  be  found  out,  with  the  view  to  their 
being  addressed  by  reasonable  argument  and  persuasion;  or  was  it 
for  the  purpose  of  coercion  and  intimidation?  Even  if  the  jury 
should  be  of  opinion  that  the  picket  did  nothing  more  than  his  duty 
as  a  picket,  and  if  that  duty  did  not  extend  to  abusive  language  and 
gestures  such  as  had  been  described,  still,  if  thatwas  calculated  to 
have  a  deterring  effect  on  the  minds  of  "ordinarypersons,  by  expos- 
mg""them  to  Jiave  their  motions  watched,  and  to  encounter  black 
lotJ^sT^haf would  not  be  pernii  ted  by  the  law  of  tlie  land.  'I'lie 
probabilities  were  that  it  was  known  to  the  leading  members  of 
the  association  what  the  pickets  were  doing.  It  was  in  evidence  that 
Druitt  had  visited  the  pickets  from  time  to  time.  It  would  be  very 
strange  indeed  if,  while  everybody  else  knew  what  they  were  doing, 
those  who  set  the  pickets  to  work  should  be  the  only  persons  who 
did  not  know  what  they  were  doing.  There  was  very  little  doubt 
that  Adamson,  Lawrence,  and  Druitt  had  authorised,  by  means  of 
the  resolution,  the  system  of  picketing.  If  the  jviry  were  satisfied 
that  this  system,  though  not  carried  beyond  watching  and  obser- 
vation, was  still  so  serious  a  molestation  and  obstruction  as  to  have 
an  effect  upon  the  minds  of  the  workpeople,  then  they  ought  to  find 
these  three  men  guilty.  If  they  thought  that  the  conduct  of  these 
men  conduced  to  this  effect,  and  that  they  knew  it,  then  also  they 
ought  to  find  them  guilty.  If,  upon  the  other  hand,  the  jury  should 
be  of  opinion  that  Adamson,  Lawrence,  and  Druitt  did  not  know 
what  the  pickets  did,  or  that  what  the  pickets  did  was  not  the  nat- 
ural consequence  of  men  placed  in  such  a  situation,  then  they  ought 
to  be  acquitted.  So  much  with  regard  to  three  of  the  prisoners. 
With  reference  to  the  other  five,  if  the  jury  believed  the  evidence  of 
Lambert,  then  these  five  ought  to  be  found  guilty.  It  was  said  that 
the  whole  of  the  prisoners  in  acting  as  they  had  acted  supposed  them- 
selves to  be  doing  what  was  right.  That  might  be  so,  but,  even  sup- 
posing it  to  be  true,  they  were  still  subject  to  the  law. 

The  jury  found  Adamson,  Lawrence,  and  Druitt,  guilty,  with  a 
recommendation  to  mercy,  and  acquitted  the  rest.^ 

'  As  to  the  effect  of  this  decision,  see  Stephen,  History  of  the  Crim.  Law,  vol.  3, 
pp.  221,  222. 


I 


SECT,  III]  VIOLENX'E  —  INTIMIDATKJN  185 

THE  BUTTEKICK  PrHLISHINO  CO.  t-.  TYPO- 

(jKaphical  rxiox  xo.  o 

Supreme  Court  of  New  Vouk.     IIMXJ 

50  Mine.  (N.  y.)  1 

Blanchard,  J.  This  is  a  motion  to  continue  during  the  pend- 
ency of  this  action  a  prchniinarv  injunction  Rrantcd  in  the  order 
to  show  cause  upon  which  this  motion  is  made  The  comjjlaint 
allct^cs  a  conspiracy  on  tlie  part  of  tlie  defendant  hihor  unions  and 
inchviduals  to  injure  tlie  plaintifT's  Inisiness  by  causing  a  strike 
among  its  employees,  by  picketing  its  places  of  business  and  lx)y- 
cotting  its  customers,  by  distributing  libelous  circular's,  letters  and 
posters  regarding  the  plaint  ill's  relaticnis  with  its  empUjyees,  and 
by  carrying  into  execution  all  of  said  acts  with  threats,  intimidation, 
force  and  fraud;  in  conclusion  the  complaint  prays  for  a  p<'rmanent 
injunction.  The  details  of  the  preliminary  injunction  heretofore 
granted  are  more  fully  discussed  hereinafter:  in  cfTect  it  restrains 
substantially  all  the  acts  descril)ed  in  the  complaint.  Prior  to  about 
November  24,  1905,  the  plaintiff  employed  about  233  pressmen 
and  feeders,  and  alx)ut  95  compositors,  who  were  members  of  the 
respective  defendant  local  unions.  The  defendant  International 
Printing  Pressmen  and  Assistants'  I'nion  was  tluMi  the  parent  or- 
ganization of  two  of  the  defendant  local  unions,  the  Adams  Cylinder 
and  Web  Press  Printers'  Association  No.  51  and  Ben.  Franklin  Asso- 
ciation (feeders)  X'^o.  23.  .  .  .  Upon  all  the  facts  it  appears  that  the 
plaint ilT  merely  hired  its  employees  by  the  week,  and  that  no  contract 
regarding  the  continuance  of  the  rate  of  wages  or  conditions  of  labor 
existed  between  the  plaintiff  and  its  employees  or  anj-  of  the  defendant 
unions.  On  November  24,  1905,  the  compositors,  members  of  No.  6, 
who  were  then  working  on  a  nine-hovn*  day,  ceased  work  because  of  the 
refusal  of  the  plaintilf  tiuMi  to  agree  to  an  eigiit-hour  day  after  January 
1,  1906,  and  because  the  plaintiff  had  then  employed  four  non-union 
men  who  were  willing  to  continue  on  a  nine-hour  day.  .  .  .  Through 
the  solicitation  of  representatives  of  No.  6  the  Hearst  syndicate 
of  newspapers  has  discontinued  the  pattern  service  of  Ea  BelU^  Fash- 
ion Co.,  a  customer  of  the  plaintiff's,  to  the  damage  of  the  plaintiff, 
who  did  the  Fashion  Co.'s  printing  work.  The  syndicate  had  agreed 
with  the  Fashion  Co.  to  transmit  for  the  latter  such  orders  for  pat- 
tern .service  as  the  members  of  the  syndicate  might  choose  to  give; 
and  the  Fashion  Co.  agreed  to  supjily  such  copy  to  the  syndicat<»  at 
certain  rates.  Since  no  member  of  the  syndicate  was  under  obliga- 
tion to  order  pattern  service  the  solicitation  by  repres(>ntatives  of 
No.  0  was  not  an  interference  with  the  performance  of  the  contract, 
but  merely  di.ssuasion  of  custom.  Circulars,  letters  and  placards, 
the  contents  and  mode  of  address  of  which  showed  that  they  eman- 
ated from  the  defendant  local  unions,  were  di.stributed  throughout 


186  LEGALITY   OF   MEANS   USED  [CHAP.  IV 

the  United  States  and  Canada  for  the  purpose  of  dissuading  cus- 
tomers from  pm'chasing  pubhcations  pubhshed  by  the  plaintiff,  or 
printed  by  the  plaintiff  for  other  publishers.  Samples  of  the  lan- 
guage of  the  circulars  most  complained  of  are  as  follows:  "Stand- 
ard Dress  Patterns,  Martha  Dean,  La  Belle,  Little  Folks  and  Ban- 
ner should  equally  be  avoided."  "No  copy  of  The  Designer,  The 
New  Idea  Magazine,  The  Standard  or  the  New  Idea  Patterns  or 
other  Butterick  publications  should  be  in  the  home  of  any  union 
man  or  in  the  home  of  any  of  his  friends."  .  .  .  "Wherever  in  this 
wide  world  there  lives  a  union  man,  we  shall  endeavor  to  acquaint 
him  with  the  contemptible  act  of  the  Butterick  Co.  You  are  hereby 
notified  that  the  Butterick  Publishing  Co.  has  locked  out  all  its 
union  employees."  ...  In  consequence  of  these  circulars  plaintiff 
has  received  from  its  agents  and  customers  about  135  letters,  either 
discontinuing  subscriptions  or  begging  the  plaintiff  to  adjust  its 
difficulties,  and  assigning  as  the  reason  for  writing  their  sjTnpathy 
w/k^  with  trade  unions  or  their  fear  of  loss  of  trade  through  continuing 

^     ^^(-•"-''^their  subscriptions.    Until  the  preliminary  injunction  was  granted 
^,.>*A  ««     herein,  the  defendant  local  unions  maintained  pickets  aggregating 

twenty-five  or  thirty  men  about  the  premises  of  the  plaintiff's  build- 
ing.   When  new  employees  were  brought  to  the  buildings  in  cabs, 
'/v^Uc  ^''^^   these  pickets  were  frequently  joined  \)y  other  members  of  the  de- 
•'-'-*^^'*''*^ "     fendant  local  unions,  from  their  headquarters  opposite  the  plain- 
-Vr»*f^  tiff's  building,  and  the  crowds  thus  formed  swarmed  about  the  cabs 

c>'-''^\^J'«,*'^ '  ill  excited  fashion  and  jostled  and  accosted  in  threatening  manner 
•■'*'**'^^  .  the  newcomers.  The  plaintiff  was  obliged  to  maintain  a  special 
officer  to  keep  back  this  crowd,  and  frequently  to  call  upon  the  patrol- 
men in  the  vicinity  to  make  a  way  into  the  building.  An  automobile 
which  was  used  to  take  some  of  the  new  employees  out  for  fresh  air 
was  followed  some  distance  from  the  building  by  a  hooting  mob, 
in  which  certain  members  of  the  defendant  local  unions  were  con- 
spicuous, and  was  stoned  by  a  similar  mob  upon  its  return.  Several 
acts  of  assault  and  battery  were  committed  by  unidentified  persons 
in  the  immediate  neighborhood  of  the  plaintiff's  building  upon  new 
employees  leaving  the  premises  at  night;  at  least  one  was  committed 
by  a  member  of  one  of  the  defendant  local  unions,  and  in  the  crowd 
that  joined  in  another  assault  a  number  of  members  of  No.  6  and 
No.  51  were  conspicuous.  These  acts  of  violence  were  reported  to 
the  police,  and  the  police  captain  of  the  precinct  found  it  necessary 
to  assign  special  details  to  prevent  assaults  when  the  employees  were 
let  out  of  the  building,  and  to  furnish  officers  to  escort  the  employees 
to  their  homes,  and  to  direct  the  men  to  disperse  the  crowds  which 
sometimes  became  so  large  about  the  l)uilding  that  traffic  was  in- 
terrupted. Derisive  and  threatening  language  was  hurled  by  these 
crowds  at  the  employees  of  the  plaintiff  when  they  appeared  upon 
th(!  streets.  By  reason  of  these  acts  the  plaintiff  has  found  it  neces- 
sary, since  the  1st  of  December,  1905,  to  board  and  lodge  in  ita 


SECT.  Ill]  VIOLENCE  —  INTIMIDATION  187 

IjuildinK  a  considerable  number  of  its  employees  at  an  cxfX'nsc  to 
it  of  S2,r)()0  a  week.  Since  the  prelimiiuirv  injunction  Wius  obtained 
herein  no  acts  of  violence  or  niol«"station  iiavc  been  n'lKirtcd;  the 
streets  have  lieen  free  from  crowds;  and  the  (•inpl(J3'ees  have  freely 
gone  to  and  fro  from  plaintiff's  mill  to  their  homes.  The  preliminary 
injunction  hereinlx-forc  ^;ranted  restrains  the  defcndant.s  from  mak- 
in^i;  any  rcfjucsts,  ^ivin^;  ariy  advice,  or  resorting;  to  any  sfM-cics  of 
persuasion,  threats,  int  midation,  ft)rce  or  fraud  which  oix-rates  to 
overcome  the  exerci.sc  of  the  fn-c  will  of  any  employee  or  customer 
of  the  plaintiff.  SiK'cifically,  tlic  defendants  are  further  restrained 
from  accomplishing;  these  puii)oses  by  pickctinjj;  the  i)laintifT's  i)lace 
of  business,  l)y  circulatiii^r  defamatory  publications  or  making  oral 
communications  to  employees,  customers,  merchants  and  news- 
dealers handling  the  plaintitT's  patterns  and  publications,  or  any 
pei-sons  who  are  about  to  become  or  might  otherwise  l)ecome  such 
parties.  When  the  plaintiff's  rifi;ht  to  the  eciuitable  relief  sought  is 
involved  in  (IoiiT)tT  the  couKwlH  not  grant  an  injunction  ixtuUtilr 
lite  containing  the  same  relief  that  would  ultimately  be  granted  if 


t^_glarntjffj>uccecded~upon  the  trial  of  the  action.  T^ohen  v.  I'nited 
Garment  WorkersT^o^  Misc.  Ilep.  748,  and  cases  cited;  Kerbs  v. 
Rosen.stein,  5()  App.  Div.  ()19,  ()21.  Upon  the  afHdavits  it  does  not 
appear  that  the  International  L'nion  is  chargeable  with  any  of  the 
acts  complained  of  in  the  moving  papers.  As  to  this  defendant  and 
the  individual  (lef(>ndants  named  asjts^  offiaMyTlb^M^^jij^^ 
junction  is  thereforc^Vircated.  Tlirough  the  excessTve'activity  Of  the 
pickets  maintainefM)v  tTie^defendant  local  unions  and  the  zeal  of 
the  members  of  these  unions  to  obtain  their  demands  by  discourag- 
ing persons  from  entering  the  plaintiff's  employ,  acts  of  violence 
have  occurred.  These  acts  occurred  in  some  instances  through  the 
actual  agency  or  connivance  of  the  members  of  the  tlefendant  local 
unions,  and  in  many  other  instances  they  were  an  almost  inevitable 
consequence  of  the  overzcal  of  pickets  and  members  of  the  tlefend- 
ant  local  unions.  Members  of  the  defendant  local  unions  ha\e 
thronged  the  streets  or  caused  the  streets  to  be  thronged  with  such 
crowds  as  to  interrupt  traffic  and  to  intimidate  the  employees  of  the 
plaintiff.  They  have  approached  the  plaintiff's  employees  in  such 
numbers  and  in  such  threatening  manner  a.*=!  to  put  them  in  fear  of 
Ixxlily  harm.  Tliey  have  waited  for  plaintiff's  employees  and  fol- 
lowed them  and  derided  them  with  a  pei-sistence  tiiat  exceed.--  the 
projx^r  limits  of  jx>rsuasion  and  l)(>comes  an  unwarranteil  annoyance 
and  harassuKMit.  The  right  of  the  defendants  to  maintain^jikkgls 
is  well  eshd)lished^provi(led,  ho\\T\MT^hat  such  pjckehiig  is  not 
acconipTished  byraHif'^P'"^''^^'"^  "''  iiiiplyTfi^~^*"i^iit-  intimidation, 
coefcion'j)r  force.  SuiTTlllTfTng  k  Pub.  A.'^sn.  r.  T)ehiTiey.  IS  Api^. 
Div.  1)23,  coinpai-e  record;  Mills  v.  V.  S.  Printing  Co.,  99  id.  tiO.'); 
Kerbs  v.  Rosenstein,  supra;  Levy  r.  Rosenstein.  (U)  N.  Y.  Supp.  KH. 
affd.,  56  Apj).  Div.  GIS;    Foster  v.  Retail  Clerks'  Protective  A.<>n., 


188  LEGALITY   OF   MEANS   USED  [CHAP.  IV 

39  ]Misc.  Rep.  48;  Rogers  v.  Evaits,..17  N.  Y.  Supp.  264.  As  was 
said  in  Rogers  v.  Evarts,  supra:  "The  right  to  combine  involves  of 
necessity  the  right  to  persuade  all  colaborers  to  join  in  the  combina- 
tion. The  right  to  persuade  colaborers  involves  the  right  to  persuade 
new  employees  to  join  the  combination."  The  strikers  may  freely 
strive  to  win  over  others  to  their  support  by  reason,  arguments 
and  proper  appeal.  Kerbs  v.  Rosenstein,  supra.  "Arguments,  reason- 
ing and  entreaty  are  proper  weapons."  People  v.  Kostka,  4  N.  Y. 
Crim.  429,  435;  People  v.  Wilzig,  4  id.  403,  418.  But  picketing, 
argument,  reasoning  and  entreaty  must  not  be  so  practiced  or  car- 
ried to  such  extremes  as  to  become  in  effect  intimidation,  threats, 
coercion  or  force.  The  jeering  of  pickets,  it  is  said,  may,  under  some 
circumstances,  consitute  intimidation.  "Even  persuasion  and  en- 
treaty may  be  used  in  such  a  manner,  with  such  persistency,  and 
with  such  environments  as  to  constitute  intimidation.  Their  use 
then  becomes  a  violation  of  law."  Rogers  v.  Evarts,  supra;  compare 
People  V.  Kostka,  supra;  People  v.  Wilzig,  supra.  Upon  the  affi- 
davits before  the  court  it  appears  that  the  proper  bounds  of  reason- 
ing and  entreaty  in  dealing  with  the  plaintiff's  employees  have  been 
so  exceeded  by  the  defendant  local  unions  and  their  members,  and 
that  the  repetition  of  threats,  intimidation,  coercion  and  force,  with 
the  resulting  damage  to  the  plaintiff's  business,  is  so  likely  that  a  con- 
tinuance of  the  injunction,  in  some  respects,  must  be  granted..  As 
regards  their  relations  to  the  plaintiff's  employees,  it  is  clear  from 
what  has  already  been  stated  that  the  defendant  local  unions  and 
their  members  must  be  restrained  from  resorting  to  any  threats, 
intimidation,  force  or  fraud,  whether  through  the  means  of  picket- 
A  ing  or  otherwise.  The  defendants  are  free,  with  these  exceptions, 
/  however,  and  within  the  limits  already  indicated,  to  make  any  re- 
I  quests  or  give  any  advice  or  resort  to  any  persuasion  for  the  pur- 
\  pose  of  winning  support;  and  in  so  far  as  the  preliminary  injunction 
\  is  inconsistent  herewith  it  is  vacated.  The  defendant  local  unions, 
Nthrough  their  representauvesT^trav^  sought  to  dissuade  customers 
who  are  not  under  contractual  obligations,  and  persons  who  might 
otherwise  become  customers,  from  purchasing  publications  and 
patterns,  published  or  printed  by  the  plaintiff.  Circulars,  letters, 
placards  and  posters  have  emanated  from  the  dc^fendant  local 
unions,  containing  several  innuendoes  of  possible  libelous  character, 
and  asking  that  members  of  unions  and  their  friends  refrain  from 
purchasing  such  publications  and  patterns  and  from  dealing  with 
merchants  who  continue  so  to  purchase.  Upon  the  analogy  of  the 
principles  already  applied  to  the  relation  of  the  dofcnidants  to  the 
plaintiff's  employees,  it  appears  that  the  defendants  should  not  press 
any  argument,  reasoning  or  entreaty  to  such  an  extreme  that  it  be- 
comes in  effect  a  threat,  intimidation,  coercion  or  force.  The  plaintiff 
contends  that  the  dissuasion  practiced  by  the  defendants,  as  shown 
in  the  moving  affidavits,  constitutes  threats  and  intimidation.    The 


I 


SECT.  Ill]  VIOLENCE  —  INTIMIDATION  189 

authorities,  however,  do  not  warrant  tliis  conclusion.  .  .  .  I'nder 
the  decisions  alKJve  (juoted,  if  ai)p('ars  tliat  the  dissua.sion  which  the 
defendant  local  unions,  through  their  representatives,  have  thus  far 
directed  against  the  plaintiff's  customers  cannot  properly  be  descril)ed 
as  threats,  intimidation,  coercion  or  force.  .  .  .  As  to  the  defend- 
ants' relation  witii  the  plaintilT's  cust<jm('rs  or  persons  who  uiight 
otherwise  Ix'come  customers,  the  defendants,  excepting  only  the 
International  Union,  must  be  restrained  from  resorting  to  any  mean.s 
of  dissua,sion  in  effect  amounting  to  threats,  intimidation,  force  or 
fraud;  and  in  so  far  as  tlie  preliminary  injuncti(Mi  proceeds  further 
than  this  it  must  be  vacated.  Regarding  the  circulars,  letters,  placards 
and  posters  that  have  enamated  from  the  defendants,  the  direction 
above  made  regarding  dissuasion  in  general,  is  fully  applicable.  .  .  . 
The  defendants  were  within  their  legal  rights  in  publishing  circulars 
setting  forth  the  circumstances  of  the  strike  and  re<}uesting  their 
friends  to  withhold  their  patronage  from  the  plaintiff.  Sinsheimer 
V.  United  Garment  Workers,  77  Hun,  215;  Cohen  v.  United  Garment 
Workers,  mi pr a;  Foster  r.  Retail  Clerks' Protective  A.ssn.,  suywa.  ,  .  . 
Injunction  modified  and,  a.s  so  modified,  continued.^ 


GARRET  V.  TAYLOR 
King's  Bench.     1621 

Croke  Jac.  507 

Action  on  the  case.  Whereas  he  was  a  free  mason,  and  used  to 
sell  stones,  and  to  make  stone-buildings,  and  wiis  po.ssessed  of  a 
lease  for  divers  years  to  come  of  a  stone-pit  in  Hedington,  in  the 
county  of  Oxford,  and  digged  divers  stones  there,  as  well  to  sell  as 
to  build  withal;  that  the  defendant,  to  discredit  and  to  deprive  him 
of  the  commodity  of  the  said  mine,  imposed  so  many  and  so  great 
threats  upon  his  workmen,  and  all  comers  disturbed,  threatening  to 
mayhem  and  vex  them  with  suits  if  they  bought  any  stones;  where- 
upon they  all  desisted  from  buying,  and  the  others  from  working, 
etc. 

After  judgment  l)y  nihil  ilicit  for  the  j-»laintiff,  ami  damages  foimd 
by  inquisition  to  fifteen  pounds,  it  was  movetl  in  arrest  of  judgment, 
That  this  action  lay  not;  for  nothing  is  alledged  but  onlj'  words, 
and  no  act  nor  insult:  and  causeless  suits  on  fear  are  no  cau.-<e  of 
action. 

Scfl  non  allocatur:  for  the  threatening  to  mayhem,  and  suits, 
whereby  they  durst  not  work  or  buy,  is  a  great  damage  to  the  plain- 

'  Accord:  N.  Y.  C.  Iron  Works  v.  Brcnnan,  10.5  N.  Y.  Supp.  865;  Hamilton- 
Brown  Shoe  Co.  V.  Saxcy,  I'M  Mo.  212;  ( loldfield  Con.>^)l.  .Mine.s  Co.  r.  Miners' 
I'nion,  1.59  Fed.  .500.  Compare  Hoiler  A-  lui^ine  Co.  r.  Henner,  14  Ohio  Dec.  'Mil 
(held,  no  injvmction  will  issue  because  an  adequate  remedy  is  provided  by  the 
criminal  law). 


190  LEGALITY    OF    MEANS    USED  [CHAP.  IV 

tiff,  and  his  losing  the  benefit  of  his  quarries  a  good  cause  of  action: 
and  although  it  be  not  shewn  how  he  was  possessed  for  years,  by 
what  title,  etc.,  yet  that  being  but  a  conveyance  to  this  action,  was 
held  to  be  well  enough.   And  adjudged  for  the  plaintiff. 


TARLETON  t-.  M'GAWLEY 

Nisi  Prius.     1794 

1  Peake  N,  P.  Cases,  270 

This  was  a  special  action  on  the  case.  The  declaration  stated 
that  the  plaintiffs  were  possessed  and  owners  of  a  certain  ship  called 
the  Tarleton,  which  at  the  time  of    committing  the  grievance  was 

lying  at  Calabar  on  the  coast  of  Africa,  under  the  command  of 

Fairweather.  That  the  ship  had  been  fitted  out  at  Liverpool  with 
goods  proper  for  trading  with  the  natives  of  that  coast  for  slaves  and 
other  goods.  That  also  before  the  committing  the  grievance  Fair- 
weather  had  sent  a  smaller  vessel  called  the  Bannister  with  a  crew 
on  board,  under  the  command  of  one  Thomas  Smith,  and  loaded 
with  goods  proper  for  trading  with  the  natives,  to  another  part  of 
the  said  coast  called  Cameroon,  to  trade  with  the  natives  there. 
That  while  the  last-mentioned  ship  was  lying  off  Cameroon,  a  canoe 
with  some  natives  on  board  came  to  the  same  for  the  purpose  of 
establishing  a  trade,  and  went  back  to  the  shore,  of  which  defendant 
had  notice.  And  that  he  well  knowing  the  premises,  but  contriving 
and  maliciously  intending  to  hinder  and  deter  the  natives  from  trad- 
ing with  the  said  Thomas  Smith,  for  the  benefit  of  the  plaintiffs, 
with  force  and  arms,  fired  from  a  certain  ship  called  the  Othello,  of 
which  he  was  master  and  commander,  a  certain  cannon  loaded  with 
gunpowder  and  shot  at  the  said  canoe,  and  killed  one  of  the  na- 
tives on  board  the  same.  Whereby  the  natives  of  the  said  coast 
were  deterred  and  hindered  from  trading  with  the  said  T.  Smith 
for  the  benefit,  etc.,  and  plaintiffs  lost  their  trade. 

Erskine,  for  the  plaintiffs.  ...  So  long  since  as  the  days  of  Brae- 
ton  it  was  held  that  to  constitute  a  duress  in  law  it  must  not  be 
"suspicio  cujuslibet  vani  &  meticulosi  hominis,  sed  talis  qui  possit  cadere 
in  virum  constantem;  talis  enim  debet  esse  metus,  qui  in  se  contineat 
vitoe  periculum,  nut  corporis  crucintum,  Brae.  1.  2,  c.  5."  But  in  this 
case  the  plaintiffs'  loss  was  not  occasioned  by  the  vain  fears  of  the 
negroes,  or  even  the  fear  of  a  battery  being  committed  on  them, 
but  a  fear  arising  from  the  danger  of  life  itself. 

The  plaintiffs  called  Thomas  Smith,  who  proved  the  facts  stated 
in  the  declaration;  and  further,  that  the  defendant  had  declared  the 
natives  owed  him  a  debt,  and  that  he  would  not  suffer  any  ship  to 
trade  with  them  until  that  was  paid;  in  pursuance  of  which  declara- 
tion he  committed  the  act  complained  of  by  the  plaintiffs.  .  .  . 


SECT.  Ill]  VIOLENCE  —  INTIAUDATION  191 

Lord  Ken  yon.  Thi.s  action  is  brought  by  the  plaintiffs  to  recover 
a  satisfaction  for  a  civil  injury  wliich  tiicy  liave  sustained.  Tiie  in- 
jury complained  of  is,  that  by  the  inipro|K'r  conduct  of  the  dc*fend- 
ant  the  natives  were  prevent-ed  from  tradinj?  witli  the  plaintiffs. 
The  whole  of  the  case  is  stated  on  the  record,  anil  if  tiie  parties  de- 
sire it,  the  opinivOn  of  the  Court  may  hereafter  be  tiiken  whether  it 
will  support  an  action.  I  am  of  opinion  it  will.  This  ease  ha.s  lx»en 
likened  to  cases  which  it  does  not  at  all  resemble.  It  ha.s  Ix'en  said 
that  a  person  enf^aged  in  a  trade  violating  the  law  of  the  e(juntry 
cannot  support  an  action  afi;ainst  another  for  hindering  him  in  that 
illcf^al  tralhck.  That  1  entirely  accede  to,  but  it  docs  not  apply  to 
this  case.  This  is  a  foreign  law;  the  act  of  trading  is  not  itself  im- 
moral, and  a  jiis  positiviim  is  not  binding  on  foreigners.  The  king  of 
the  country  and  not  the  defendant  should  have  cxecut<'d  that  law. 
Had  this  l)een  an  accidental  thing,  no  action  could  have  l)een  main- 
tained, but  it  is  proved  that  the  defendant  had  expressed  an  inten- 
tion not  to  permit  any  to  trade,  until  a  del)t  due  from  the  natives 
to  himself  was  satisfied.  If  there  wa.s  any  court  in  that  country  to 
which  he  could  have  applied  for  justice  he  might  have  done  so,  but 
he  had  no  right  to  take  the  law  into  his  own  hands. 

The  plaintiffs  had  a  verdict,  and  the  parties  agreed  t^o  refer  the 
damages  to  arbitration. 

O'NEIL  I'.  BEHANNA 

Supreme  Court  of  Pennsylvania.     1897 

182  Pa.  St.  236 

Bill  in  equity  for  an  injunction  againist  strikers,  and  to  recover 
damages  for  injuries  caused  by  the  alleged  illegal  conduct  of  strik- 
ers. .  .  . 

Opinion  by  Mr.  Justice  Mitchell,  July  1.5,  1897: 
We  are  obliged  to  differ  wholly  from  tlie  view  of  the  facts  re- 
ported l)y  the  learned  master.  It  is  totally  irreconcilable  with  the 
testimony  read  in  the  light  of  experience  and  a  knowledge  of  human 
nature.  Nor  can  we  agree  entirely  with  the  view  of  the  court  below, 
though  it  is  more  in  accordance  with  the  evidence  and  the  law.  The 
learned  judge  in  his  opinion  says,  "the  testimony  establishes  the 
fact  that  certain  of  the  defendants  overstepped  these  bounds  and 
used  annoyance,  intimidation,  ridicule,  and  coercion,  to  prevent 
new  men  from  engaging  in  work  for  the  plaintiff.  When  the  new 
men  were  followed  and  importuned  not  to  work,  from  their  ix)int 
of  eml)arkation  to  their  destination,  and  th(M-e  met  by  the  striki'rs 
in  consiihuable  numbers,  and  followed  to  their  lodging  places,-  all 
the  time  being  pressed  and  entreat<?d  to  return,  and  called  '  scabs  ' 
and  *  blacklegs,'  and  sometimes  surrounded,  and  the  effort  made  to 
pull  them  away,  an  unfriendly  (at  lca.st)  atmosphere  about  every- 


192  LEGALITY   OF   MEANS   USED  [CHAP.  IV 

where,  it  must  be  admitted  that  there  was  something  more  than 
mere  argmiient  and  persuasion,  and  the  orderly  and  legitimate  con- 
duct of  a  strike.  This  was  certainly  serious  annoyance  and  well  cal- 
culated to  intimidate  and  coerce.  And  that  effect  was  apparentl}^ 
produced  on  more  than  one  occasion.  Nor  did  such  acts  entirely 
end  when  the  men  imported  actually  began  work,  but  such  men 
were,  on  occasions  and  in  a  less  public  manner,  approached  in  a 
Hke  manner  in  their  intervals  of  labor,  and  advised  that  there  would 
be  trouble  there,  and  they  had  better  leave.  No  actual  violence 
however  was  employed." 

This  is  a  mild  and  judicially  restrained  statement  of  what  the 
evidence  clearly  showed.  The  strikers  and  their  counsel  seem  to 
think  that  the  former  could  do  anything  to  attain  their  ends,  short 
of  actual  physical  violence.  This  is  a  most  serious  misconception. 
The  "arguments,"  and  "persuasion"  and  "appeals"  of  a  hostile 
and  demonstrative  mob  have  a  potency  over  men  of  ordinary  nerve 
which  far  exceeds  the  limits  of  lawfulness.  The  display  of  force 
though  none  is  actually  used  is  intimidation,  and  as  much  unlawful 
as  violence  itself. 

An  attempt  is  made  to  argue  that  the  strikers  only  congregated 
at  the  place  of  arrival  of  the  new  men  in  accordance  with  the  cus- 
tom at  boat  and  train  arrivals  in  small  towns.  But  this  disguise  is 
too  flimsy  to  hide  the  real  purpose.  If  they  desired  in  good  faith  to 
meet  peaceably  and  lawfully  for  their  own  business,  they  should 
have  selected  another  place  sufficiently  remote  to  be  free  from  the 
excitement  and  crowds  which  their  own  testimony  admits  attended 
the  arrival  of  the  new  men,  and  also  far  enough  away  to  avoid  the 
intimidating  effect  of  a  hostile  crowd  on  the  newcomers.  But  in 
truth  they  did  not  desire  to  avoid  that  effect.  On  the  contrary  that 
was  what  they  were  there  for,  and  their  presence  indicates  their  real 
intentions  too  plainly  for  any  verbal  denials  on  their  part  to  offset. 

It  is  further  urged  that  the  strikers  through  their  committees 
only  exercised  ("insisted  on"  is  the  phrase  their  counsel  use  in  this 
court),  their  right  to  talk  to  the  new  men,  to  persuade  them  not  to 
go  to  work.  There  was  no  such  right.  These  men  were  there  pre- 
sumably under  contract  with  the  plaintiff,  and  certainly  in  search 
•of  work  if  not  yet  actually  under  pay.  They  were  not  at  leisure, 
and  their  time,  whether  their  own  or  their  employer's,  could  not 
lawfully  be  taken  up  and  their  progress  interfered  with  by  these  or 
any  other  outsiders  on  any  pretense  or  under  any  claim  of  right,  to 
argue  or  persuade  them  to  break  their  contracts.  Even  therefore  if 
the  arguments  and  persuasion  had  been  confined  to  lawful  means, 
they  were  exerted  at  an  improper  time,  and  were  an  interference 
with  the  plaintiff's  rights  which  made  the  perpetrators  liable  for  any 
damages  the  plaintiff  suffered  in  consequence.  But  in  fact  their 
efforts  were  not  confined  to  lawful  means.  The  result  of  the  evidence, 
.as  stated  by  the  learned  judge,  is  that  the  new  men  were  "followed 


\ 


SECT.  Ill]  VIOLENCE  —  INTIMIDATION  193 

and  import uin'd  not  to  work,  from  tlicir  [xjint  (jf  cinharkatioii  to 
their  destination,  and  there  met  by  the  strikers  in  considerable  num- 
bers, .  .  .  called  '  scales  '  and  '  blacklegs,'  and  sometimes  sur- 
rounded and  the  effort  made  to  puU  them  away."  This  view  is  quite 
sufhcicntly  favorable  to  the  defendants,  and,  as  already  said,  a  hostile 
and  threatening  crowd  does  n(Jt  need  to  resort  to  actual  violence  to 
be  guilty  of  unlawful  intimidation.  The  acts  of  these  defendants 
were  an  unlawful  interference  with  the  rights  of  the  new  men,  and 
with  those  of  thi^  plaintiff.  .  .  .  We  regard  the  testimony  a.s  demon- 
strating that  the  ilefendants  were  guilty  of  an  unlawful  coml)ina- 
tion  which,  while  professing  the  intenti(jn  anil  trying  t(j  maintain 
an  outward  aijpcarance  of  lawfulness,  was  carried  out  by  violent 
and  threatening  conduct,  which  was  cfjuall}'  a  violation  of  the  rights 
of  the  new  men  who  came  to  work  for  plaintiff  and  of  the  plaintiff 
h(>rself.  and  that  they  are  lial^le  in  this  suit  for  all  the  damages  which 
plaintiff  suffered  thereby.  .  .  . 

Not  the  least  notable  feature  is  the  expression  of  surprise  by  the 
counsel  and  even  by  th(^  court  that  the  case  was  pushed  after  the 
strike  was  ov(t.  It  app(nirs  to  be  a  fact  that  the  strike  was  less  vio- 
lent and  disorderly  than  others,  which  had  preceded  it  and  a  senti- 
ment seems  to  have  pervaded  the  community,  even  the  court  not 
being  entirely  exempt,  that  the  strike  being  over,  the  subject  had 
better  be  dropped.  This  is  not  law  nor  justice.  A  plaintiff  who 
might  have  been  hurt  worse  than  he  was  may  be  inclineil  not  to 
push  his  claim  for  compensation  for  the  injur\'  actually  received, 
but  it  is  for  him,  and  not  for  others,  and  especially  not  for  courts,  to 
make  the  choice,  and  there  should  be  no  judicial  surprise  if  he  in- 
sists on  his  rights,  though  other  men  may  think  discretion  the  Ix^t- 
ter  part  of  valor. 

Decree  reversed,  bill  reinstated  and  damages  directed  to  be  as- 
certained in  accordance  with  this  opinion.  Costs  to  be  paid  by  the 
appellees.' 

'  Accord:  Cook  v.  Dolan,  19  Pa.  County  Ct.  401  (opprobrious  epithets  used  by 
picketers). 

In  the  case  of  "Vis  Compulsiva"  (coercion  through  fear  arising  from  threat 
of  physical  harm)  may  the  person  coerced  have  a  tort  action?  To  cover  such  a 
situation,  the  Roman  law  developed  the  well-recognized  actio  quod  metiis  cau.sa. 
Does  the  Knglish  common  law  of  torts  give  any  sur'h  right  of  action? 

What  Kind  of  Threats  Constitutes  Intimidation?  "As  a  general  rule, 
even  if  subject  to  some  exceptions,  what  you  may  do  in  a  certain  event  you  may 
threaten  to  do,  that  is,  give  warning  of  your  intention  to  do  in  that  event,  and 
thus  allow  the  other  person  the  chance  of  avoiding  the  con.scquences."  —  Per 
Holmes,  J.,  in  Vegelahn  r.  Guntner,  l(i7  Mass.  02  at  107. 

"It  appears  sometimes  to  l>e  thought  that  a  mere  threat  in  it.self  gives  a  cause 
of  action;  but  this  is  not  so.  .\n  indignant  parent  cannot  lie  .sued  for  threatening 
his  .son  that  ho  will  Im>  disinherited  if  he  does  not  reform,  even  although  the  in- 
timation may  lack'nothing  in  force  and  angry  vigour.  The  reiuson  is,  that  he  is  en- 
titled to  disinherit  his  son,  if  he  thinks  fit;  and  he  does  not  commit  any  legal 
wrong  in  informing  his  .son  of  his  intention,  with  such  emphasis  as  he  may  con- 
aider  desirable.    Workmen  are  admitteillv  entitled  to  cease  work  for  any  re.ason, 


V 


J 


LEGALITY    OF    MEANS    USED  [CHAP.  IV 

Section  4.     Peaceful  Persuasion 

IRON  HOLDERS'  UNION  v.  ALLIS-CHALMERS  CO. 

U.  S.  Circuit  Court  of  Appeals,  Seventh  Circuit.     1908 

166  Fed.  45 
The  appeal  is  from  a  final  decree  in  a  strike  injunction  suit.  .  .  . 
The  final  decree  enjoins  the  defendants,  four  Wisconsin  local  unions  of 
the  national  organization  of  iron  molders  and  some  sixty  indi\aduals  who 
were  officers  and  members,  from  doing  the  following: 

"(1)  From  in  anj'^  manner  directly  interfering  with,  hindering,  obstruct- 
ing, or  stopping  the  business  of  the  said  complainant,  or  its  agents,  servants 
/  or  employees,  in  the  maintenance,  conduct,  management  or  operation  of 

\J  (r'    its  business. 

"(2)  From  compelling  or  inducing  or  attempting  to  compel  or  induce 
by  threats,  intimidation,  force  or  violence  anj-  of  the  said  company's  em- 
ploA'ees  to  fail  or  refuse  to  work  for  it,  or  to  leave  its  service. 

"  (3)  From  preventing  or  attempting  to  prevent  any  person  or  persons 
by  threats,  intimidation,  force  or  \dolence,  from  freely  entering  into  or  con- 
tinuing in  the  said  com'panj^'s  ser\'ice. 

"(4)  And  from  congregating  upon  or  about  the  company's  premises  or 
the  streets,  approaches  and  places  adjacent  or  leading  to  said  premises  for 
the  purpose  of  intimidating  its  employees  or  preventing  or  hindering  them 
from  fulfilling  their  duties  as  such  employees  or  for  the  purpose  of  in  such 
manner  as  to  induce  or  coerce  by  threats,  \aoIence,  intimidation  or  per- 
suasion, any  of  the  said  company's  employees  to  leave  its  service  or  any 
person  to  refuse  to  enter  its  service. 
i  "(5)  From  congregating  upon  or  about  the  compan^y's  premises  or  the 

sidewalk,  streets,  alleys  or  approaches  adjoining  or  adjacent  to  or  leading  to 
^  '  said  premises,  and  from  picketing  the  said  complainant's  places  of  business 

or  the  homes  or  boarding  houses  or  residences  of  the  said  complainant's 
employees. 

"(6)  From  interfering  with  the  said  company's  employees  in  going  to 
and  from  their  work. 

good,  bad,  or  indifferent;  and  employers  are  entitled  to  decline  to  continue  work- 
men in  their  employment  for  any  reason,  whether  good  or  bad.  .  .  .  No  legal 
exception  can  be  taken  to  the  fact  of  the  strike;  yet  it  is  sometimes  contended 
that  an  action  will  lie  for  intimating  to  the  employers  that  in  certain  circumstances 
that  which  the  men  are  entitled  to  do  will  be  done.  If  this  be  the  law,  notliing 
could  be  more  inconvenient  for  both  employer  and  workman,  as  the  tendency 
would  be  to  call  the  strike  first,  without  waiting  for  negotiations  which  would  give 
an  opportunity  to  the  employers  to  (consider  whether  it  was  to  their  advantage  to 
make  the  required  concessions;  and  certainly  those  who  objected  to  tlie  so-called 
threat  would  be  the  first  to  protest  against  a  strike  which  was  made  without  due 
intimation  that  it  was  about  to  take  place." —  Per  Peterson,  J.,  in  Ilodgcs  v.  Webb, 
[1920]  2  Ch.  70,  at  page  88.     See  also,  Wolstenholme  v.  Ariss,  (1920]  2  Ch.  403. 

Should  LwTiMmATioN  fie  Mrasurrd  by  a  Subjective  oit  by  an  Ob.iective 
Test?  See  Jersey  City  Printing  Co.  v.  Cassidy,  63  N.  J.  Eq.  7.59,  at  page  769. 
See  also,  liranton,  Book  II,  chap.  .5. 

Compare  King  v.  Weiss  &  Lesh  Mfg.  Co.,  2()6  Fed.  2.57  (colored  men  more 
easily  intimidated  than  white). 


I 


SECT.  IV]  PEACEFUL    I'KK.SrASIO.V  105 

"(7)  From  Roirig  singly  or  collectively  to  the  liomes  of  the  said  com- 
pany's employees  for  the  purpose  of  intimidating  rjr  threatening  tliem  <jr 
collectively  persuading  them  to  leave  its  service. 
,  "(8)  FronTenforcnig,  maintaining  or  aiding  any  illegal  Ixn'cott  againwt 

y-*^   the  said  company,  its  agents  or  emi)loyees. 

"(!))  From  endeavoring  to  illegally  induce  i)eoj)le  not  to  deal  with  said 
^ —  company,  its  agents  and  employees. 

.  "(10)   From  preventing  or  attempting  to  j)n'vent   by  threats,  intiniida- 

I  ^(^Jtion,  ]mi-suasion  or  in  any  other  mamier  any  in-i-son  or  corix)ration  from 

performing  work  for  said  comjjlainant  and  from  doing  business  with  it. 

"(11)  From  intimidating  or  threatening  in  any  manner  the  wives  and 
families  of  said  employees  at  their  homes  or  elsewhere. 

"(12)  From  doing  any  of  the  aforesaid  or  any  other  acts  for  the  purix)8e 
of  compelling  and  inducing  or  attempting  to  comix,'l  or  induce  the  com- 
plainant by  threats,  intimidation,  force  or  violence,  against  it.s  will  or  the 
will  of  its  officers,  to  employ  or  t<j  discharge  any  jK'rson  or  jK'rsons  whom- 
soever, and  esix?cially  to  employ  memlKTs  of  said  unions  or  discharge  jx-T- 
sons  who  are  not  members  of  said  unions. 

"(i;^)  Froni  combining,  associating,  agreeing,  mutually  undertaking, 
concerting  together  or  with  other  jx-rsons  for  the  purjx)se  of  doing  or  caus- 
ing to  be  done  any  of  the  afijresaid  prohibited  acts. 

"(14)  From  combining,  a.s.sociating,  agreeing,  mutually  undertaking,  con- 
certing together  or  with  other  persons  for  the  purjKJse  of  preventing  [or 
j^  hindering  the  complainant  from  doing  or  performing]  any  lawful  act  in  the 
^  conduct  of  its  aforesaid  business  or  for  the  pur{X)se  of  injuring  the  com- 
plainant in  its  aforesaid  business,  or  of  com]K'lling  the  complainant  against 
its  will  from  doing  or  {lorforming  any  lawful  act  or  from  injuring  the  stdd 
complainant  in  its  trade  and  business. 

"(15)  From  directing  and  abetting  or  coun.selling  any  acts  whatsoever 
or  in  any  manner  whatsoever  the  conspiracy  and  combination  found  by  the 
court  to  exist,  to  prevent  the  comjilainant  and  its  officers  and  enii)loyees  in 
r  the  free  and  uninterrupted  control  and  direction  of  its  busine.ss  and  affairs 
I  *A/^nd  to  j)revent  the  comjjlainant  from  doing  or  perfonnining  any  and  all 
lawful  acts  in  the  conduct  of  its  Inisinoss  and  to  comix^l  the  comi)lainant 
against  its  will  from  doing  and  performing  its  la'W'ful  business  and  to  i)re- 
vent  the  complainant  from  doing  or  {x^rforming  all  lawful  acts  in  the  con- 
duct or  management  of  its  business. 

"(16)  From  by  threats,  intimidation,  persuasion,  force  or  violence,  com- 
pelling or  attempting  to  comjjel  or  induce  any  of  the  apprentices  in  the  em- 
ploy of  the  said  complainant  to  break  their  contracts  and  leave  the  employ 
of  the  said  complainant."  .  .  . 

B.\KER,  Circuit  Jiulgo.  ,  .  .  The  evidence  sliowod  that  appellee 
was  entitled  to  injunctive  relief.  To  keep  other  workmen  out  of 
apjx^Uee's  foumlries,  some  of  the  union  men  went  to  the  extent  of 
using  vile  and  abu.sive  language,  threats  of  violence,  and  actual  as- 
saults. This  was  effective  enough  to  damage  appellee's  busine.^ 
quite  seriously,  and  was  carried  on  under  circumstances  that  might 
be  held  to  indicate  the  unions'  tacit  approval.  None  of  the  ap|M'llants 
ever  chaliengetl  by  a|)p(^al  Ww  justice  of  the  temporary  injimction  or 
of  the  punishments  for  its  violation.     And  on  this  apjx'al  from  tlie 


196  LEGALITY   OF   MEANS   USED  [CHAP.  IV 

final  decree  not  a  shadow  of  justification  is  found  for  these  acts  of 
violence  and  intimidation.  The  only  substantial  question  is  whether 
or  not  the  trial  court  has  stepped  beyond  the  hne  of  safeguarding 
the  legal  rights  of  appellee  and  has  thereby  deprived  appellants  of 
some  of  their  legal  rights. 

To  organize  for  the  purpose  of  securing  improvement  in  the  terms 
and  conditions  of  labor,  and  to  quit  work  and  to  threaten  to  quit 
work  as  means  of  compelling  or  attempting  to  compel  employers 
to  accede  to  their  demands  for  better  terms  and  conditions,  are 
rights  of  workmen  so  well  and  so  thoroughly  established  in  the  law 
(Thomas  v.  Rid.  Co.  [C.  C]  62  Fed.  803;  Arthur  v.  Oakes,  63  Fed. 
320,  11  C.  C.  A.  209,  25  L.  R.  A.  414;  Wabash  Rid.  Co.  v.  Hannahan 
[C.  C]  121  Fed.  563),  that  nothing  remains  except  to  determine  in 
successive  cases  as  they  arise  whether  the  means  used  in  the  en- 
deavor to  make  the  strike  effective  are  lawful  or  unlawful.  .  .  . 

The  record  shows  that  the  local  unions  had  a  conference  in  re- 
gard to  conditions   in  all  the  foundries  in  the  city  and   county  of 
Milwaukee;   that  they  fonnulated  demands  respecting  wages,  over- 
time, double  time  on  holidays,  piecework,  weekly  pay  day,  limitation 
of  the  nimiber  of  apprentices,  and  a  joint  arbitration  board;    that 
these  demands  were  made  alike  upon  all  the  foundry  owners  within 
that  territory;   and  that  when  the  demands  were  rejected  the  union 
men  in  all  the  foundries  struck.    Nothing  in  the  record  indicates 
that  there  was  any  want  of  good  faith  in  making  these  demands, 
or  that  the  strike  was  undertaken  with  any  other  purpose  than  to 
enforce  them,  or  that  appellee  received  or  was  singled  out  to  receive 
different  treatment  from  that  dealt  out  to  other  foundry  owners. 
So  the  employment  of  assault  and  duress  in  the  progress  of  the 
strike  should  be  attributed  to  a  combination  to  accomplish  a  law- 
ful end  by  unlawful  means,  rather  than  the  employment  of  unlawful 
means  should  be  taken  as  proof  that  the  end  sought  to  be  accom- 
plished by  such  means  was  itself  unlawful.    And  consequently  the 
parts  of  the  decree  which  prohibit  the  use  of  persuasion  and  picket- 
j    ing  can  be  justified  only  on  the  basis  that  such  means  arc  not  law- 
l    fully  to  be  applied  in  a  genuine  struggle  of  labor  to  obtain  better 
j  terms  and  conditions ;   for  surely  men  are  not  to  be  denied  the  right 
I  to  pursue  a  legitimate  end  in  a  legitimate  way,  simply  because  they 
Vmay  have  overstepped  the  mark  and  trespassed  upon  the  rights  of 
their  adversary.    A  barrier  at  the  line,  with  punishment  and  dam- 
ages for  having  crossed,  is  all  that  the  adversary  is  entitled  to  ask. 

So  far  as  persuasion  was  used  to  induce  apprentices  or  others  (sec. 
16  of  the  decree)  to  break  their  contracts  to  serve  for  definite  times, 
the  prohibition  was  right.  And  the  reason,  we  believe,  is  quite  plain. 
Each  party  to  such  a  contract  has  a  property  interest  in  it.  If  either 
breaks  it,  he  does  a  wrong,  for  which  the  other  is  entitled  to  a  remedy. 
And  whoever  knowingly  makes  himself  a  party  to  a  wrongful  and 
injurious  act  becomes  equally  liable.    But  in  the  present  case  the 


SECT.  IV] 


PEACEFUL    PERSUASION 


l'J7 


generality  of  the  men  who  took  or  sought  the  places  left  by  the 
strikers  were  employed  or  were  offered  employment  at  will,  as  the 
strikers  had  Ix'en.  If  cither  party,  with  or  with(jut  caiLS(,',  ends  an 
employinciit  at  will,  the  otlicr  ha.s  no  Ic^al  ^;r(iund  (jf  coniphiint. 
So  if  the  course  of  the  new  men  wh(j  (juit  or  wlio  declined  enijjloy- 
ment  was  the  result  of  the  free  play  of  their  intellects  and  wills,  tiien 
agaiast  them  apjx'llee  had  no  cause  of  action,  and  much  less  against 
men  who  merely  furnished  information  and  arguments  to  aid  them 
in  forming  their  judgments.  Now  it  nmst  not  l>e  forgotten  that  the 
suit  was  to  protect  appellee's  property  rights.  Regarding  employ- 
ments at  will,  those  rigiits  reached  their  limit  at  this  line:  J-'or  the 
mainU^nance  of  the  incorporeal  value  of  a  going  business  appellee 
had  the  right  to  a  free  access  to  the  labor  market,  and  the  further 
right  to  the  continuing  services  of  those  who  accepted  emi)loyment 
at  will  until  such  services  were  terminated  l)y  the  free  act  of  one  or 
the  other  party  to  the  employment.  On  the  other  side  of  this  limit- 
ing line,  appellants,  we  think,  had  the  right,  for  the  purpo.s(>  of  main- 
taining or  increasing  the  incorporeal  value  of  their  capacity  to  labor, 
to  an  equally  free  access  to  the  labor  market.  The  right  of  the  one 
to  persuade  (but  not  coerce)  the  unemployed  to  accept  certain  terms 
is  limited  and  conditioned  ])y  the  right  of  the  other  to  dissuade  (but 
not  restrain)  them  from  accepting.  For  another  thing  that  nuist  not 
be  forgotten  is  tiiat  a  strike  is  one  manifestation  of  the  comjx-tition, 
the  struggle  for  survival  or  place,  that  is  inevitable  in  individualistic 
society.  Dividends  and  wages  must  both  come  from  the  joint  prod- 
uct of  capital  and  lal)or.  And  in  the  struggle  wherein  each  is  seeking 
to  hold  or  enlarge  his  ground,  we  believe  it  is  fundamental  that  one 
and  the  same  set  of  rules  should  govern  the  action  of  both  contest- 
ants. For  instance,  employers  may  lock  out  (or  threaten  to  lock 
out)  employees  at  will,  with  the  idea  that  idleness  will  force  them 
to  accept  lower  wages  or  more  onerous  conditions;  and  employees 
at  will  may  strike  (or  tiireaten  to  strike),  with  the  idea  that  idleness 
of  the  capital  involved  will  force  employers  to  grant  better  terms. 
These  rights  (or  legitimate'  means  of  contest)  are  mutual  and  are 
fairly  balanced  against  each  otiier.  Again,  an  employer  of  molders, 
having  locked  out  his  men,  in  order  to  effectuate  the  purpose  of  triS^ 
lockout,  may  persuade  (but  not  coerce)  othcr~ToundIy^nen  not  to 
employ  molders  for  higher  wages  or  on  better  terms  than  those  for 
which  he  made  his  stand,  and  not  tO  take  in  his  late'  emjiloyees  at 
all,  so  that  they  may  l)e  forced  back  to  his  foundry  at  his  own  terms; 
and  molders,  having  struck,  in  order  to  make  their  strike  effi^'tive 
may  p(>rsuadc  (but  not  coerce)  other  molders  not  to  work  for  less 
wages  or  under  worse  conditions  than  those  for  which  they  .struck, 
and  not  to  work  for  their  late  (>mployer  at  all.  .so  that  he  may  l)e 
forced  to  tak(>  th(Mn  back  into  his  foundry  at  their  own  t<'rms..  Hen% 
also,  the  rights  are  nuitual  alul  fairly  balanced.  On  the  other  hand, 
an  employer,  having  locked  out  his  men.  will  not  In*  jx^rmitted.  though 


i^ 


198  LEGALITY   OF   MEANS   USED  [CHAP.  IV 

/     it  would  reduce  their  fighting  strength,  to  coerce  their  landlords 
/        and  grocers  into  cutting  off  shelter  and  food;    and  employees,  hav- 
/  ing  struck,  will  not  be  permitted,  though  it  might  subdue  then- 

/  late  emploj^er,  to  coerce  dealers  and  users  into  starving  his  business. 

1  The  restraints,  likewise,  apply  to  both  combatants  and  are  fairly 

\  balanced.    These  illustrations,  we  believe,  mark  out  the  line  that 

\  must  be  observed  by  both.    In  contests  between  capital  and  labor 

the  only  means  of  injuring  each  other  that  are  lawful  are  those  that 
operate  directly  and  immediately  upon  the  control  and  supply  of 
work  to  be  done  and  of  labor  to  do  it,  and  thus  directly  affect  the 
apportionment  of  the  common  fund,  for  only  at  this  point  exists  the 
competition,  the  evils  of  which  organized  society  will  endure  rather 
than  suppress  the  freedom  and  initiative  of  the  individual.  But 
attempts  to  injure  each  other  by  coercing  members  of  society  who 
are  not  directly  concerned  in  the  pending  controversy  to  make  raids 
in  the  rear  cannot  be  tolerated  by  organized  society,  for  the  direct, 
the  primary,  attack  is  upon  society  itself.  And  for  the  enforcement 
j  of  these  mutual  rights  and  restraints  organized  society  offers  to 
'  both  parties,  equally,  all  the  instrumentalities  of  law  and  of  equity. 
With  respect  to  picketing  as  well  as  persuasion,  we  think  the  de- 
cree went  beyond  the  line.  The  right  to  persuade  new  men  to  quit 
or  dechne  employment  is  of  little  worth  unless  the  strikers  may  as- 
certain who  are  the  men  that  their  late  employer  has  persuaded  or 
is  attempting  to  persuade  to  accept  employment.  Under  the  name 
of  persuasion,  duress  may  be  used;  but  it  is  duress,  not  persuasion, 
that  should  be  restrained  and  punished.  In  the  guise  of  picketing, 
strikers  may  obstruct  and  annoy  the  new  men,  and  by  insult  and 
menacing  attitude  intimidate  them  as  effectually  as  by  physical 
assault.  But  from  the  evidence  it  can  always  be  determined  whether 
the  efforts  of  the  pickets  are  limited  to  getting  into  communication 
with  the  new  men  for  the  purpose  of  presenting  arguments  and  ap- 
peals to  their  free  judgments.  Prohibitions  of  persuasion  and  picket- 
ing, as  such,  should  not  be  included  in  the  decree.  Karges  Furniture 
Co.  V.  Amalgamated  Wood  Workers'  Union,  165  Ind.  421,  75  N.  E. 
877,  2  L.  R.  A.  (n.  s.)  788;  Everett-Waddy  Co.  v.  Typographical 
Union,  105  Va.  188,  53  S.  E.  273,  5  L.  R.  A.  (n.  s.)  792. 

We  have  not  found  anything  in  the  evidence  that  justified  the 
decree  as  to  an  "  illegal_boycott. ' '  No  attempt  was  made  to  touch 
appellee's  dealings  or  relations  with  customers  and  users  of  its  goods. 
Oxlcy  Stave  Co.  v.  Coopers'  International  Union  (C.  C),  72  Fed. 
695;  Loewe  v.  Cal.  State  Federation  of  Labor  (C.  C),  139  Fed.  71; 
Loewe  v.  Lawlor,  208  U.  S.  274,  28  Sup.  Ct.  301 ,  52  L.  Ed.  488.  After 
the  strik(;  was  on,  appellee  s(>nt  patterns,  on  wliich  the  strikers  had 
been  working,  to  foundries  in  other  cities.  The  strikers  piocured 
the  molders  in  those  foundries,  who  also  were  members  of  the  Iron 
Moldors'  Union  of  North  America,  to  refuse  to  make  appellee's 
■castings.    Those  molders  notified  their  employers  that  they  would 


SECT.  IV]  PEACEFUL   PERSUASION  199 

have  to  cancel  their  ccmtracts  to  make  ca-stings  for  appellee,  or  they 
would  quit  work.  Some  employers  discharged  the  notifiers,  others 
refused  io  cancel  and  the  union  men  struck,  and  others  complied 
and  the  union  men  stayed.  In  those  in.stances  where  the  foundry - 
men  fulfilled  their  contracts,  app<'llee  wius  not  damaged;  in  tho.sc 
where  fouridrymen  hnjke  their  contracts,  there  is  no  proof  that 
ai)pellee  has  not  collected  or  cannot  collect  ade(juat<'  damages.  That 
might  he  taken  as  a  reason  why  apix'llee  on  this  branch  of  the  case 
is  not  entitled  to  the  aid  of  e(}uity.  But  there  is  a  more  inqwrtant 
reason.  Appellants  were  aiming  to  prevent,  and  apix-llee  to  wcure, 
the  tloing  of  certain  work  in  which  the  skill  of  appclUnits'  tnule  was 
necessary.  Here  was  the  ground  of  controversy,  and  here  the  test 
of  endurance.  If  apiX'Uee  had  the  right  (and  we  think  the  right  was 
perfect)  to  seek  the  aid  of  fellow  foundrymen  to  the  end  that  the 
necessary  element  of  labor  should  enter  into  appellee's  product, 
ai)iM'llant  had  the  reciprocal  right  of  .seeking  the  aid  of  fellow  nKjlders 
to  prevent  that  end.  To  whatever  extent  employers  may  lawfully 
combine  and  cooperate  to  control  the  supply  and  the  conditions  of 
work  to  be  tlone,  to  the  .same  extent  should  be  recognized  the  right 
of  workmen  to  combine  and  cociperate  to  control  the  supply  and  the 
conditions  of  the  labor  that  is  necessary  to  the  doing  of  the  work. 
In  the  fullest  recognition  of  the  equality  and  mutualitj'  of  their 
rights  and  their  restrictions  lies  the  peace  of  capital  and  labor,  for 
so  they,  like  nations  with  ecjually  well  drilled  and  equipped  armies 
and  navies,  will  make  and  keej)  treaties  of  peace,  in  the  fear  of  the 
cost  and  consequences  of  war. 

The  decree  is  modified  by  striking  out  "persuasion"  and  "per- 
suading" from  the  4th  and  7th  paragraphs;  further  modified  by 
adding  after  "picketing"  in  the  r)th  paragraph  "in  a  threatening  or 
intimidating  manner";  vacated  as  to  the  l.st,  8th,  9th,  10th,  14th 
and  loth  paragraphs;  affirmed  as  to  the  2d,  3d,  6th,  11th,  12th,  13th, 
loth  and  the  modified  4th,  5th  and  7th  paragraphs.  Co.sts  of  this 
court  to  be  divided  equally.' 

'  "Apart  from  the  qtiostion  of  i)l;untifT's  ripht  to  maintain  this  bill,  the  order 
apiM'aled  from  went  too  far  in  I'lijoining  against  '  intorfcriii^  in  any  way  or  in  any 
manner,  directly  or  indirectly,  with  the  plaintiff  or  the  Delker  Bros.  Buppy  Co. 
or  the  emi)loyees  of  the  Delker  Bros.  BunKy  f^"-  •  •  ■  Jind  from  pieketinj;  high- 
ways or  means  of  in(z;re.ss  and  e^res-s  to  and  from  sjiid  plant  of  .s^iid  Imn^jy  company  ' 
—  act,s  which  do  not  ne<'es.sarily  eon.stitute  an  unlawful  interference.  Kin^j  r. 
Manufacturing  Co.,  260  Fed.  2.57. 

"The  order  appealed  from  must  lie  reversed,  and  the  record  remanded  to  the 
District  Court,  with  directions  to  dismiss  the  hill."  Davis  v.  Henry,  '2iViS  FchI. 
2(')1,  2(if;. 

The  doctrine  of  the  principiil  ca.se  is  sujiported  hv  a  long  list  of  authorities. 
See  e.spocially  Ko^ers  v.  Evarts,  17  X.  V.  Supp.  2t)l.  See  also,  as  typi<'al  causes, 
Jones  V.  K.  Van  Winkle  diu  it  .Madiine  Works,  I'M  da.  3.'i(>:  Karues  Furniture 
Co.  t;.  AmalRaniatcd  Woodworkers'  Union,  H\n  Ind.  421;  Curnln'rland  Chuss 
MfR.  Co.  c.  r;i.i.s.s  Bottle  Blowers'  .\s.sn.,  .59  \.  .1.  K*].  40;  .Jones  r.  Maher,  111)  N. 
Y.  Supp.  ISO;  Kvcrett-Waddev  Co.  r.  Richmond  'Pyponra|>hical  Union.  10.")  V.i. 
188;   tJoldfieid  Consolidated  Mines  Co.  v.  C.oldtield  Miners'  Union,  1.59  Fed.  500. 


200 


LEGALITY    OF    MEANS    USED 


[CHAP.  IV 


Section  5.    Picketing 

FiTZHERBERT,  New  Natura  Brevium.^  And  there  is  another 
writ  of  trespass  against  those  who  lie  near  the  plaintiff's  house,  and 
will  not  suffer  his  servants  to  go  into  the  house,  nor  the  servants  who 
are  in  the  house  to  come  out  thereof. 


VEGELAHN  v.  GUNTNER 

Supreme  Judicial  Court  of  Massachusetts.     1896 

167  Mass.  92 

Bill  in  equity,  filed  December  7,  1894,  against  fourteen  individ- 
ual defendants  and  two  trades  unions.  .  .  . 

The  following  decree  was  entered  at  a  preliminary  hearing  upon 
the  bill:  "This  cause  came  on  to  be  heard  upon  the  plaintiff's  motion 
for  a  temporary  injunction;  and  after  due  hearing,  at  which  the 
several  defendants  were  represented  by  counsel,  it  is  ordered,  ad- 
judged, and  decreed  that  an  injvmction  issue  pendente  lite,  to  remain 
in  force  until  the  further  order  of  this  court,  or  of  some  justice  thereof, 
j^estrainingJlie  respondents  and  each^and  e veryj3fjhem^_^^ 
ind''sii:xa£ts^_^rom^2nt«rfm 


trolling  the  sidewaIE~or  streetlrTTront  or  in  the  vicinity_of  the  prem- 
ises  occuDied-bY-Jtum,  for^the  purpose  ot^i^^nting'any  person^or 


persons  jvhp  now^e  or  may  lierealter  be  m~his_einEloyment ,  or 
desirous  of  entermg  the  same,  from  entering  it,  or  contimiing  ii 
ihg  or  intertermg  with  such  jii 


qr_by_^5iistrmrtihg  or  intertermg  with  such  jiexsSMpor  any  others, 
in_entering_or  leaving  the  plaintiff's  said_premises ;  oFT)y  Tntmiidat- 
ing,  by  threats  or  otherwise7~any  person  or  persons  who  now  are  or 
may  hereafter  be  in  the  employment  of  the  plaintiff,  or  desirous  of 
entering  the  same,  from  entering  it,  or  continuing  in  it;  or  by  any 
scheme^or  conspirucy^ajnong  themselves  or  with  others,  or^am^^' 
for  the  purpose  of  annoying,  hindering,  ^ntefferm^with,  or  pre- 
vcnting  any  person  or  persons  who  now  are  or  may  iKMc^after  be  m 
the  cmplojTiicnt  of  the  plaintiff,  or  desirous  of  entering  the  same, 
from  entering  it,  or  from  continilmg  therein." 

Hearing  upon  the  bill  and  answers  before  Holmes,  J.,  who  re- 
ported the  case  for  the  consideration  of  the  full  court,  as  follows: 

"The  facts  admitted  or  proved  are  that,  following  upon  a  strike 
of  the  plaintiff's  workmen,  the  defendants  have  conspired  to  pre- 
vent the  plaintiff  from  getting  workmen,  and  thereby  to  prevent 
him  from  carrying  on  his  business  unless  and  until  he  will  adopt  a 
schedule  of  prices  which  has  been  exhibited  to  him,  and  for  the  pur- 
pose of  compelling  him  to  accede  to  that  schedule,  but  for  no  other 
purpose.    If  he  adopts  that  schedule  he  will  not  be  interfered  with 

'  Pago  87  N.    Tho  New  Natura  Brovium  was  first  published  in  L')34. 


SECT.  V]  PICKETING  201 

further.  The  lucaris  adopted  for  preventing  the  plaintiff  from  getting? 
workmen  are,  (1)  in  the  first  place,  persuasion  and  social  pres.sure. 
And  these  means  are  sufficient  to  affect  the  plaint  iff  disadvanta- 
gcously,  althouj^h  it  does  not  apjx-ar,  if  tiiat  be  material,  tliat  they 
are  sufficient  to  crush  him.  I  ruled  that  the  employment  of  these 
meaiLS  for  the  said  purpo.se  wa.s  lawful,  and  for  that  n*ason  refused 
an  injunction  against  the  employment  of  them.  If  the  ruling  was 
wrong,  I  find  that  an  injunction  ought  to  he  granted. 

"(2)  I  find  also,  that,  as  a  further  nieans  for  accomplishing  the 
desired  end,  threats  of  per.sonal  injury  or  unlawful  harm  were  con- 
veyed to  peraoiLS  seeking  employment  or  employed,  although  no 
actual  violence  was  used  beyond  a  technical  battery,  and  although 
the  threats  were  a  good  d(rA  disguised,  and  express  woids  were 
avoided.  It  appeared  to  me  that  there  was  danger  of  similar  acts 
in  the  future.    I  ruled  that  conduct  of  this  kind  should  be  enjoined. 

"The  defendants  established  a  patrol  of  two  men  in  front  of  the 
plaintiff's  factory,  as  one  of  the  instrumentalities  of  tln'ir  plan.  The 
patrol  was  cliaiigcd  every  h(jur,  and  continued  from  half-past  six  in 
the  morning  until  half-past  five  in  the  afternoon,  on  one  of  the  Ijusy 
streets  of  Boston.  The  number  of  men  was  greater  at  times,  and  at 
times  showed  some  little  inclination  to  stop  the  plaintiff's  door, 
which  was  not  serious,  but  seemed  to  me  proper  to  Ixj  enjoined. 
The  patrol  proper  at  times  went  further  than  simple  advice,  not 
obtruded  l>eyond  the  point  where  the  other  person  was  willing  to 
listen,  and  conduct  of  that  sort  is  covered  by  (2)  above,  but  its 
main  purpose  w:us  in  aid  of  the  plan  held  lawful  in  (1)  above.  I 
was  .satisfied  that  there  was  prol)ability  of  tiie  patrol  being  con- 
tinued if  not  enjoined.  I  ruled  that  the  patrol,  so  far  as  it  confined 
itself  to  pei-suasion  and  giving  notice  of  the  strike,  was  not  unlaw- 
ful, and  limited  the  injunction  accordingly. 

"There  was  some  evidence  of  persuasion  to  break  existing  con- 
tracts.   1  ruled  that  this  was  unlawful,  and  should  be  enjoined. 

"I  made  the  final  decree  appended  hereto.  If,  on  the  foregoing 
facts,  it  ought  to  be  reversed  or  modified,  such  decree  is  to  be  en- 
tered as  the  full  court  may  think  proper;  otherwise,  the  decree  is 
to  stand." 

The  final  decree  was  as  follows:  "This  cause  came  on  to  be  heard, 
and  was  argued  by  counsel;  and  thereupon,  on  consideration  thereof, 
it  is  ordered,  adjudged,  and  decreed  that  the  defendants,  and  each 
and  every  of  tiuMu,  their  agents  and  servants,  b(>  restrained  and 
enjoined  from  Interfering  witii  the  plaint ifTs  business  by  obstri^- 
ing  or  physically  mterfeflng  wirTT  any  ixn^-^-^^"  entering  or  leaving 
the  plaintiff's  pTemises"liumbered  141,  1(37  14r>,  147  North  Street 
in  said  Boston,  or  by  intimidating,  by  threats,^£xpres.s^or  implied^, 
of  violence  or  physical  harm  to  body  or  property,  any  {XMg^on  or 
persons^'ho  now  are  or  hereafter  may  be  m  the  employment  of  the 
plaintiff,  or  desirous  oI^enleriE^  the  same,  from  entering  or  con- 


202  LEGALITY   OF  MEANS   USED  [CHAP.  IV 

tinuing  in  it,  or  by  in  any  way  hindering,  interfering  with,  or  pre- 
venting any  person  or  persons  who  now  are  in  the  employment  of 
the  plaintiff  from  continuing  therein,  solong  as  they  may  be  bound 
so  to  do  byjuwf ul  contract." 

The  case  was  argued  at  the  bar  in  March,  1896,  and  afterwards 
was  submitted  on  briefs  to  all  the  judges.  ... 

Allen,  J.  The  principal  question  in  this  case  is  whether  the  de- 
fendants should  be  enjoined  against  maintaining  the  patrol.  .  .  . 

The  patrol  was  maintained  as  one  of  the  means  of  carrying  out 
the  defendants'  plan,  and  it  was  used  in  combination  with  social 
pressure,  threats  of  personal  injury  or  unlawful  harm,  and  per- 
suasion to  break  existing  contracts.  It  was  thus  one  means  of  in- 
timidation indirectly  to  the  plaintiff,  and  directly  to  persons  actually 
employed,  or  seeking  to  be  employed,  by  the  plaintiff,  and  of  ren- 
dering such  employment  unpleasant  or  intolerable  to  such  per- 
sons. Such  an  act  is  an  unlawful  interference  with  the  rights  both 
of  employer  and  of  employed.  .  .  .  Intimidation  is  not  limited  to 
threats  of  violence  or  of  physical  injury  to  person  or  property.  It 
has  a  broader  signification,  and  there  also  may  be  a  moral  intimida- 
tion which  is  illegal.  Patrolling  or  picketing,  under  the  circum- 
stances stated  in  the  report,  has  elements  of  intimidation  like  those 
which  were  found  to  exist  in  Sherry  v.  Perkins,  147  Mass.  212.  It 
was  declared  to  be  unlawful  in  Regina  v.  Druitt,  10  Cox  C.  C.  592; 
Regina  v.  Hibbert,  13  Cox  C.  C.  82;  and  Regina  v.  Bauld,  13  Cox 
C.  C.  282.  .  .  . 

The  defendants  contend  that  these  acts  were  justifiable,  because 
they  were  only  seeking  to  secure  better  wages  for  themselves  by 
compelling  the  plaintiff  to  accept  their  schedule  of  wages.  This 
motive  or  purpose  does  not  justify  maintaining  a  patrol  in  front  of 
the  plaintiff's  premises,  as  a  means  of  carrying  out  their  conspiracy. 
A  combination  among  persons  merely  to  regulate  their  own  con- 
duct is  within  allowable  competition,  and  is  lawful,  although  others 
may  be  indirectly  affected  thereby.  But  a  combination  to  do  in- 
jurious acts  expressly  directed  to  another,  by  way  of  intimidation 
or  constraint,  either  of  himself  or  of  persons  employed  or  seeking 
to  be  employed  by  him,  is  outside  of  allowable  competition,  and  is 
unlawful.  .  .  .   The  present  case  falls  within  the  latter  class.  .  .  . 

In  the  opinion  of  a  majority  of  the  court  the  injunction  should  be 
in  the  form  originally  issued. 

So  ordered. 

Field,  C.  J.  ...  I  am  of  opinion,  on  the  facts  reported,  as  I  under- 
stand them,  that  the  decree  entered  by  Mr.  Justice  Holmes  should 
be  affirmed  without  modification.'  .  .  . 

'  Field,  C.  J.,  after  an  intorosfinp;  discussion  of  the  practice  of  issuinp;  injunc- 
tions in  labor  cases,  concluded  lliat  in  the  present  case  there  was  no  justification 
for  the  issue  of  an  injunction  to  prevent  picketing  and  peaceful  persuasion.  —  Ed. 


I 


SECT.  V]  PICKETING  2(J3 

Holmes,  J.  .  .  .  In  the  first  place,  a  word  or  two  nhould  Ik*  .said 
as  to  tlie  meaning  of  Uie  reix>rt.  1  assume  tliat  my  brethren  construe 
it  as  I  meant  it  U)  be  construed,  and  that,  if  tliey  were  not  prepared 
to  do  so,  they  would  give  an  opportunity  t(j  the  defendants  to  have 
it  amendetl  in  aecordancc  with  what  1  state  my  meaning  to  \h'.  There 
was  no  pro(jf  of  any  threat  or  danger  of  a  patrol  exceeding  two  men, 
and  as  of  course  an  injunction  is  not  granted  except  witli  reference  to 
what  there  is  reason  to  expect  in  its  absence,  the  question  on  that 
point  is  whether  a  patrol  of  two  men  should  be  enj<jined.  Again,  the 
defendants  are  enjoined  i)y  the  final  decree  from  intimidating  by 
tlu'eats,  express  or  imi)lied,  of  physical  harm  t<j  body  or  proj^Tty, 
any  person  who  may  be  desirous  of  entering  into  the  employment  of 
the  plaintiff  so  far  as  to  prevent  him  from  entering  the  same.  In 
order  to  test  the  ccMTcctness  of  the  refusal  to  go  further,  it  must 
be  a.ssumcd  that  the  defendants  obey  the  express  prohii)ition  of 
the  decree.  If  they  do  not,  they  fall  within  the  injunction  as  it  now 
stands,  and  are  liable  to  summary  punishment.  The  important 
difference  betw(M»ri  the  preliminary  and  the  final  injunction  is  that 
the  former  goes  further,  and  forljids  the  defendants  to  inti'rfere 
with  the  plaintiff's  business  "by  any  scheme  .  .  .  organized  for 
the  purpose  of  .  .  .  preventing  any  person  or  persons  who  now  are 
or  may  hereafter  be  .  .  .  desirous  of  entering  the  [plaintiff's  em- 
ployment] from  entering  it."  I  cjuote  only  a  part,  and  the  part  which 
fieems  to  me  most  objectionable.  This  includes  refijsal  of  social  in- 
tercourse, and  even  organized  persuasion  or  argument,  although 
free  from  any  threat  of  violence,  either  express  or  implied.  AntI  this 
is  with  reference  to  |:)ersons  who  have  a  legal  right  to  contract  or  not 
to  contract  with  the  plaintiff,  as  they  may  see  fit.  Interference  with 
existing  contracts  is  forbidden  by  the  final  decree.  I  wish  to  insist 
a  little  that  the  only  point  of  difference  which  involves  a  difference 
of  principle  between  the  final  decree  and  the  preliminary  injunction 
which  it  is  proposed  to  restore,  is  what  I  have  mentioned,  in  ord;'r 
that  it  may  be  seen  exactly  what  we  are  to  discuss.  It  apj^ears  to 
me  that  the  judgment  of  the  majority  turns  in  part  on  the  assump- 
tion that  the  patrol  necessarily  carries  with  it  a  threat  of  bodily 
harm.  That  assumption  I  think  unwarranteil,  for  the  reasons  wiiich 
I  have  given.  Furthermon^  it  cannot  be  said,  I  think,  that  two 
men  walking  together  up  and  down  a  sidewalk  and  speaking  to  those 
who  (Miter  a  certain  shop  do  necessarily  and  always  thereby  convey 
a  threat  of  force.  I  do  not  think  it  possible^  to  discriminate,  and  to 
say  that  two  workmen,  or  even  two  representatives  of  an  organiza- 
tion of  workmen,  do,  —  especially  when  thej'  are,  and  are  known 
to  be,  under  the  injunction  of  this  court  not  to  do  so.  See  Stimson, 
Handbook  to  Lal)or  Law,  sec.  60,  esp.  pp.  290.  20S.  200.  .300;  Re- 
gina  ;•.  Sheph(M(l,  11  (ox  C.  C.  32."i.  I  may  add.  that  I  think  the 
more  int(»llig(Mit  workingmen  believe  as  fully  as  I  do  that  they  no  more 
can  be  permitted  to  usurp  the  State's  prerogative  of  force  than  can 


204  LEGALITY   OF   MEANS   USED  [CHAP.  IV 

their  opponents  in  their  controversies.  But  if  I  am  wrong,  then  the 
decree  as  it  stands  reaches  the  patrol,  since  it  appHes  to  all  threats 
of  force.  With  this  I  pass  to  the  real  difference  between  the  inter- 
locutory and  the  final  decree. 

I  agree,  whatever  may  be  the  law  in  the  case  of  a  single  defend- 
ant, Rice  V.  Albee,  164  Mass.  88,  that  when  a  plaintiff.  Droves  that 
several  persons  have  combined  and  consjf)ired  to  injure  his^business^ 
and  havejione  acts  procIiicing7.$hai  eff  ect^e  shows  temporal  damage 
and~arcause  of  action,  unless  the  facts  disclose,  or  the  defencfante 
prove,  some;|ground~or^?nrirse  or  justification.  And  I  take  it  tcube 
settled ^[^^and^ghtly  settled^^ t hat  doing  that  damage  by  combined 
persuasion  isjctionable,  as  well  asHoing  it  by  falsehoocTor^byJoxce. 
Walker  v.  Cronin,  lu7  Mass.  5557  "Mbrasse  v.  Brochu,  151  Mass. 
567.   Tasker  v.  Stanley,  153  Mass.  148. 

Nevertheless,  in  numberless  instances  the  law  warrants  the  in- 
tentional infliction  of  temporal  damage  because  it  regards  it  as  jus- 
tified. It  is  on  the  question  of  what  shall  amount  to  a  justification, 
and  more  especially  on  the  nature  of  the  considerations  which  really 
determine  or  ought  to  determine  the  answer  to  that  question,  that 
judicial  reasoning  seems  to  me  often  to  be  inadequate.  The  true 
grounds  of  decision  are  considerations  of  policy  and  of  social  advan- 
tage, and  it  is  vain  to  suppose  that  solutions  can  be  attained  merely 
by  logic  and  the  general  propositions  of  law  which  nobody  disputes. 
Propositions  as  to  public  policy  rarely  are  unanimously  accepted, 
and  still  more  rarely,  if  ever,  are  capable  of  unanswerable  proof. 
They  require  a  special  training  to  enable  any  one  even  to  form  an 
intelligent  opinion  about  them.  In  the  early  stages  of  law,  at  least, 
they  generally  are  acted  on  rather  as  inarticulate  instincts  than  as 
definite  ideas  for  which  a  rational  defence  is  ready. 

To  illustrate  what  I  have  said  in  the  last  paragraph,  it  has  been  the 
law  for  centuries  that  a  man  may  set  up  a  business  in  a  country 
town  too  small  to  support  more  than  one,  although  he  expects  and 
intends  thcrc})y  to  ruin  some  one  already  there,  and  succeeds  in  his 
intent.  In  such  a  case  he  is  not  hold  to  act  "unlawfully  and  with- 
out justifiable  cause,"  as  was  alleged  in  Walker  v.  Cronin  and  Rice 
V.  Albee.  The  reason,  of  course,  is  that  the  doctrine  generally  has 
been  accepted  that  free  competition  is  worth  more  to  society  than 
it  costs,  and  that  on  this  ground  the  infliction  of  the  damage  is  priv- 
ileged. Commonwealth  v.  Hunt,  4  Met.  Ill,  134.  Yet  even  this 
proposition  nowadays  is  disputed  by  a  considerable  body  of  per- 
sons, including  many  whose  intelligence  is  not  to  be  denied,  little 
as  we  may  agree  with  them. 

I  have  chosen  this  illustration  partly  with  reference  to  what  I 
have  to  say  next.  It  shows  without  the  need  of  further  authority 
that  the  policy  of  allowing  free  competition  justifies  the  intentional 
inflicting  of  temporal  damage,  including  the  damage  of  interffMvnce 
with  a  man's  business,  by  some  means,  when  the  damage  is  done  not 


I 
I 


SECT.  V]  PICKETING  205 

for  its  own  sake,  but  tus  an  instrumentality  in  rcarhin^  tiic  end  of 
victory  in  the  battle  of  trade.  In  such  a  case  it  cannot  matter  whether 
th(!  plaintiff  is  the  only  rival  of  the  defendant,  and  so  is  aimed  at 
spe(;ifi(;ully,  or  is  one  of  a  class  all  of  whom  are  hit.  The  only  de- 
batable f:;roimd  is  tlie  nature  of  the  means  by  which  such  damage 
may  be  inflicted.  We  all  aj^ree  that  it  cannot  be  done  by  force  or 
threats  of  force.  W'e  all  agree,  1  presume,  that  it  may  \Ht  done  by 
persujision  to  leave  a  rival's  shop  and  come  to  the  defendant's.  It 
may  b(>  dom;  by  the  refusal  or  withdrawal  of  vari(jus  pecuniary  ad- 
vantages which,  apart  from  this  consequence,  are  within  the  de- 
fendant's lawful  control.  It  may  be  done  by  the  withdrawal,  or 
threat  to  withdraw,  such  advantages  froin  third  jKTSons  wh(j  have 
a  right  to  deal  or  not  to  deal  with  the  plaintiff,  as  a  means  of  induc- 
ing them  not  to  deal  with  iii.ii  cither  iis  customers  or  servants.  (Com- 
monwealth V.  Hunt,  4  Met.  Ill,  132,  183.  Bowen  v.  Matheson, 
14  Allen,  499.  Ileywood  v.  Tillson,  75  Maine,  225.  Mogul  Steam- 
ship Co.  V.  McGregor,  [1892]  A.  (.\  25. 

I  pause  here  to  riMiiark  that  the  word  "threats"  often  is  u.sed  as 
if,  when  it  appeared  that  threats  had  been  made,  it  apjxjared  that 
unlawful  conduct  had  begun.  But  it  depends  on  what  you  threaten. 
As  a  general  rule,  even  if  subject  to  .some;  exceptions,  what  you  may 
do  in  a  certain  event  you  may  threat^^n  to  do,  that  is,  give  warning 
of  your  intention  to  do  in  that  event,  and  thus  allow  the  other  per- 
son the  chance  of  avoiding  the  consequences.  So  a.s  to  "compulsion," 
it  depends  on  how  you  "compel."  Commonwealth  v.  Hunt,  4  Met. 
Ill,  133.  So  as  to  "annoyance"  or  "intimidation."  Connor  r. 
Kent,  Curran  v.  Trelcaven,  17  Cox  C.  C.  354,  367,  308,  370.  In 
Sherry  v.  Perkins,  147  Mass.  212,  it  was  found  as  a  fact  that  the  dis- 
play of  banners  which  was  enjoined  was  part  of  a  scheme  to  prevent 
workmen  from  entering  or  remaining  in  the  plaintiff's  employment, 
"by  threats  and  intimidation."  The  context  showed  that  the  words 
as  there  used  meant  threats  of  personal  violence,  and  intimidation 
by  causing  fear  of  it. 

I  have  seen  the  suggestion  made  that  the  conflict  between  em- 
ployers and  employed  is  not  competition.  But  I  v(^nture  to  assume 
that  none  of  my  brethren  would  rely  on  that  suggestion.  If  the 
policy  on  which  our  law  is  founded  is  too  narrow'ly  expres.sed  in  the 
term  free  competition,  we  may  substitut^^  free  struggle  for  lif(\ 
Certainly  the  policy  is  not  limited  to  struggles  between  ix^rsons  of 
the  same  cla.ss  completing  for  the  same  end.  It  applies  to  all  con- 
flicts of  temporal  interests.  — 

So  far,  I  suppose,  we  are  agreed.  But  there  is  a  notion  which 
latterly  hjis  been  insisted  on  a  good  deal,  that  a  combination  of  ]m^t- 
sons  to  do  what  any  on(>  of  them  lawfully  might  do  by  himsi^lf  will 
make  the  otherwise  lawful  conduct  unlawful.  It  wouUl  1h'  ra.sh  to 
say  that  some  as  yet  unformulated  truth  may  not  be  hidden  under 
this  proposition.    But  in  th(^  general  form  in  which  it  has  been  pre- 


206  LEGALITY   OF   MEANS   USED  [CHAP. 

sented  and  accepted  by  many  courts,  I  think  it  plainly  untrue, 
on  authority  and  on  principle.  Commonwealth  v.  Hunt,  4  Jj^t. 
111.  Randall  v.  Hazelton,  12  Allen,  412,  414.  There  was  ccv^^na- 
tion  of  the  most  flagrant  and  dominant  kind  in  Bowen  v.  SiKheson 
and  in  the  Mogul  Steamship  Co.'^  case,  and  combinatioM^is  essen- 
tial to  the  success  achieved.  But  it  is  not  necessary  to^Pre  cases;  it 
is  plain  from  the  slightest  consideration  of  practical  ^airs,  or  the 
most  superficial  reading  of  industrial  history,  that  fr6e  competition 
means  combination,  and  that  the  organization  of  the  world,  now 
going  on  so  fast,  means  an  ever  increasing  might  and  scope  of  com- 
bination. It  seems  to  me  futile  to  set  our  faces  against  this  tend- 
ency. WTiether  beneficial  on  the  whole,  as  I  think  it,  or  detrimental, 
it  is  inevitable,  unless  the  fundamental  axioms  ol  ^ciety,  and  even 
the  fundamental  conditions  of  life,  are  to  be  changt 

One  of  the  eternal  conflicts  out  of  which  life  is  -„  '  that 
between  the  effort  of  every  man  to  get  the  most  he  Ci  ji  for  his  serv- 
ices, and  that  of  society,  disguised  under  the  name  of  capital,  to  get 
his  services  for  the  least  possible  return.  Combination  on  the  one 
side  is  patent  and  powerful.  Combination  on  the  othe..'JB  the  neces- 
sary and  desirable  counterpart,  if  the  battle  is  to  be  c^Sed  on  in  a 
fair  and  equal  way.    I  am  unable  to  reconcile  Temperto  "'"<5sell, 

[1893]  1  Q.  B.  715,  and  the  cases  which  follow  it,  with, 
Steamship  Co.  case.    But  Temperton  v.  Russell  is  not'        -muiiig 
authority  here,  and   therefore  I  do  not  think  it  necessa)  Ato  dis- 
cuss it.  w 

If  it  be  true  that  workingmen  may  combine  with  a  vie\ryi 
other  things,  to  getting  as  much  as  they  can  for  their  labor,' 
capital  may  combine  with  a  view  to  getting  the  greatest 
return,  it  must  be  true  that  when  combined  they  have  tl 
liberty  that  combined  capital  has  to  support  their  interests' 
gument,  persuasion,  and  the  bestowal  or  refusal  of  those  advantages 
which  they  otherwise  lawfully  control.  I  can  remember  when  many 
people  thought  that,  apart  from  violence  or  breach  of  contract,  strikes 
were  wicked,  as  organized  refusals  to  work.  I  suppose  that  intelli- 
gent economists  and  legislators  have  given  up  that  notion  today. 
I  feel  pretty  confident  that  they  equally  will  abandon  the  idea  that 
an  organized  refusal  by  workmen  of  social  intercourse  with  a  man 
who  shall  enter  their  antagonist's  employ  is  wrong,  if  it  is  dissoci- 
ated from  any  threat  of  violence,  and  is  made  for  the  sole  object  of 
prevailing  if  possible  in  a  contest  with  their  employer  about  the 
rate  of  wages.  The  fact,  that  the  immediate  object  of  the  act  by  which 
the  benefit  to  themselves  is  to  be  gained  is  to  injure  their  antagonist, 
does  not  necessarily  make  it  unlawful,  any  more  than  when  a  great 
house  lowers  the  price  of  certain  goods  for  the  purpose,  and  with 
the  effect,  of  driving  a  smaller  antagonist  from  the  business.  In- 
deed, the  question  seems  to  me  to  have  been  decided  as  long  ago  as 
1842  by  the  good   sense  of  Chief  Justice  Shaw,  in  Commonwealth 


! 


SECT.  V]  PICKETING  207 

.  Hunt,  4  Mot.  111.  I  npcat  at  tlic  end,  a.><  I  s-.i'ui  at  the  l^oginning, 
t.*at  thi.s  i.s  tiic  point  oi  (lifTcrciu-c  in  princijilc,  ;ind  tlic  onlv  one 
bet-  ^en  the  interlocutory  and  the  final  deeree.  See  Kegina  v.  Shep- 
herd, 11  Cox  C.  C.  325;  Connor  v.  Kent,  Gibson  v.  Lawson,  Curran 
V.  Treleaven,  17  Cox  C.  C.  'S'A. 

The  general  rjucstion  of  the  propriety  of  dealing  with  thi.s  kind 
of  ciuse  l)y  injunction  I  say  nothing  about,  because  I  understand 
that  the  defeVidants  have  no  objection  to  the  final  decree  if  it  goes  no 
further,  and  that  both  parties  wish  a  decision  upon  the  matters  which 
I  have  discussed.' 

POJ^  MOTOR  CAR  CO.  v.  KEEGAX 
PTATES  Circuit  Court,  N.  D.  Ohio.     190G 
150  Fed.  148 
Tayler,  tjMnct  Judge.     On  October  5,  1900,  the  complainant 
filed  its  bill  against  John  J.  Keegan,  J.  M.  Keck,  and  some  270  other 
persons,  charging  a  conspiracy  among  the  defendants,  and  with  other 
persons  unM'own  to  the  complainant,  to  carry  into  execution  a  strike 
at  the  factojj>^)f  th(>  complainant  at  Toledo;   that  one  of  the  objects 
of  the       ^c  was  to  compel  tiie  complainant  to  submit  to  the  dicta- 
Bgan  and  Keck,  who  were  officials  of  the  International 

/of  Machinists,  as  to  the  terms  and  conditions  upon 
complainant  should  employ  machinists;  and  that  all  of 
the  fietenaants,  except  Keegan  and  Keck,  had  i)een  in  the  employ 
(  .omplainant  company,  and,  at  the  time  of  filing  the  bill,  were 

c  n  strike.  The  bill  proceeds  to  allege,  in  various  forms,  charges 
of  reats,  abuse,  intimidation,  and  violence  of  which  the  defendants 
wc  guilty  against  men  whom  the  complainant  had  employed  to 
tak(>  j„ne  places  of  the  .strikers,  and  prays  for  an  injunction  restrain- 
ing the  defendants  from  doing  th(^  acts  charged  against  them.  At 
the  time  of  the  filing  of  the  bill,  a  temporary  restraining  order  was 
allowed.  An  application  for  a  preliminary  injunction  came  up.  and 
was  heard  on  October  27th.  A  large  numlier  of  affidavits  were  fiknl, 
and,  by  agreement  of  parties,  testimony  was  taken  orally;  and  we 
now  have  for  determination  the  question  as  to  whether  or  not  a  pre- 
liminary injunction,  in  the  general  terms  of  the  restraining  order 
heretofore  allowed,  shall  be  granted. 

There  is  little  controversy  among  counsel  as  to  tiie  law  applicable 
to  a  case  of  this  kind;  the  chief  contention  arising  iis  to  the  applica- 
tion of  the  law  to  the  facts  in  this  ca'iio.  The  rules  of  law  which  I 
conceive  to  be  well  established,  and  wliich  I  shall  apply  to  the  con- 
sideration and  determination  of  the  qu(>stions  now  Ix^fore  the  court, 
are,  subst;intially,  as  follows:  To  interfcM'e,  by  violence,  by  thrtwts 
or  by  intimidation,  with  others  who  are  pursuing  their  natural  and 
constitutional  right  to  labor  when  and  where  they  plea.se.  is  always 

^  See  Holme.s,  O.  W.,  Privilege,  Malice,  and  Intent,  S  Har\-ard  Lnw  Rc\'iew,  1. 


208  LEGALITi-   OF   IVIEANS   USED  [CHAP.  IV 

wrong,  and  always  unlawful.  No  sense  of  personal  wrong,  however 
great,  however  natural,  or  however  excusable,  can  justify  such  in- 
terference. No  offended  sense  of  right,  as,  for  instance,  that  an- 
other is  unjustly  "taking  his  job,"  gives  warrant  to  such  interference. 
The  strikers  themselves  are  entitled  to  no  more  rights  than  those 
whom  they  find  working  in  their  old  places.  Individual  freedom  is 
the  chief  of  the  rights  of  each.  It  cannot  be  said  that  a  job  is  held 
except  by  mutual  consent.  It  cannot  be  claimed  by  any  intelligent 
man  that  one  holds  his  job  whether  his  employer  desires  it  so  or  not. 
As  well  might  we  say  that  the  workman,  against  his  will,  can  be  held 
to  service  by  his  employer. 

But  nothing  can  be  better  settled,  either  in  law,  in  conscience,  or 
in  common  sense,  than  that  every  man  may  seek  or  refuse  work 
wheresoever  he  will;  that  workmen  may  combine  for  their  mutual 
advantage;  that  they  may  persuade  fellow  workmen,  or  others,  to 
leave  their  employment;  but  such  persuasion  must  be  such  as  to 
persuade  by  reason,  and  not  compel  by  threat,  or  violence,  or  in- 
timidation. One  of  the  forms  of  persuasion  which,  under  proper 
circumstances,  the  law  recognizes  as  permissible,  is  "picketing"  by 
strikers;  that  is  to  say,  the  detachment  of  men  in  suitable  places 
for  the  purpose  of  coming  into  personal  relations  with  the  new  work- 
men, in  order,  if  possible,  to  induce  them,  by  means  of  peaceful  argu- 
ment, to  leave  the  places  which  they  have  taken,  for  such  natural 
and  proper  reasons  as  may  appeal  to  men  in  such  circumstances. 

Much  has  been  said  by  the  courts,  and  by  others,  as  to  the  peace- 
disturbing  quality  of  picketing;  and  it  is  claimed  by  many  that 
picketing,  though  intended  to  be  peaceable,  and  engaged  in  by  no 
more  than  two  or  three  at  each  station,  necessarily  results  in  violence 
or  intimidation,  and  is  itself  intimidating.  A  learned  judge,  in  1867, 
said  that,  in  his  opinion,  "it  was  impossible  to  have  an  effectual 
system  of  picketing  without  being  guilt}'  of  that  alarm,  intimidation, 
and  obstruction  which  is  a  breach  of  the  law."  Possibly  that  may 
still  be  true,  but  it  cannot  now  be  said  without  qualification,  as  it 
then  could.  In  knowledge  of  their  rights,  in  law-abiding  spirit,  in 
general  intc^lligenco,  there  has  been  a  great  advance,  especially 
among  skilled  artisans.  In  this  country,  at  least,  they  make  up  a 
large  part  of  our  intelligent  and  law-abiding  citizens. 

If  we  can  apprehend  anything,  we  must  observe  that  a  better 
practice  is  prevailing,  due,  doubtless,  to  the  increasing  intelligence 
and  good  sense  of  those  involved,  and  also  to  the  fact  that  courts 
have  come  to  be  recognized  as  ready  to  protect  persons  in  their 
rights,  and  to  punish  those  who  unlawfully  interfere  with  them.  Un- 
doubtedly violence  and  intimidation  have,  to  some  extent,  been 
associated  with  picketing  in  this  case;  not  always,  though  perhaps 
generally,  at  the  hands  of  the  strikers  themselves.  The  idle,  the 
dissolute,  and  the  lawless  are  likely  to  take  advantage  of  such  a 
situation  as  this  to  commit  unlawful  acts,  and  the  state  of  mind 


1 


SECT.  V]  PICKETING  209 

into  which  Ktriking  mechanics  arc  hkcly  to  come,  in  such  a  ca«o  aa 
we  have  here,  is  more  or  less  hkel}-  either  to  make  them  indifferent 
to  these  acts  when  committed  hy  others,  or,  in  some  instances,  to 
encourage  them.  Nevertheless,  I  cannot  Ix'lieve  that,  under  projxT 
circumstances,  and  with  such  a  sense  of  self-restraint  an  men  can 
exercise,  picketing  may  not  he  properly  conducted. 

A  very  instructive  cjise  in  this  comiection  is  Karges  Furniture  (\). 
V.  Amalgamated  Woodworkers'  Local  Union  et  al.  (Ind.  Suj).)  75 
N.  E.  877,  2  L.  R.  A.  (n.  s.)  788.  The  Supreme  Court  of  Indiana, 
in  that  case,  say: 

"Whether  picketing  is  lawful  or  unlawful  dep<^'nds,  in  ea(,'h  partic- 
ular ca.se,  upon  the  conduct  of  tiie  jjickets  themselves.  Under  no 
circumstances  have  pickets  the  right  to  employ  force,  menaces,  (jr 
intimidation  of  any  kind,  in  their  efforts  to  induce  non-striking  work- 
men to  (juit,  or  those  about  to  take  the  strikers'  places  to  refrain  from 
doing  so;  neither  have  they  the  right,  as  pickets  or  otherwise,  to 
a.ssemhle  about  the  working  place  in  such  numbers  or  in  such  man- 
ner as  to  impress  workmen  employed,  or  contemplating  employment, 
with  fear  and  intimidation.  It  is,  however,  generally  conceded  in 
this  country  and  in  lOngland  that  workmen,  when  free  from  contract 
obligations,  may  not  only  themselves,  singly  and  in  combination, 
cease  to  work  for  any  employer,  but  may  also,  as  a  means  of  accom- 
plishing a  legitimate  purpose,  use  all  lawful  and  peaceful  means  to 
induce  others  to  quit  or  refuse  employment.  The  law,  having  granted 
workmen  the  right  to  strike  to  secure  better  conditions  from  their 
em[)l()vers,  grants  them  also  the  use  of  those  means  and  agencies,  not 
inconsistent  with  the  rights  of  others,  that  are  necessary  to  make  the 
strike  effective.  This  embraces  the  right  to  support  their  contest 
by  argument,  persuasion,  and  such  favors  and  accommodations  as 
they  have  within  their  control.  The  law  will  not  deprive  endeavor 
and  energy  of  their  just  reward,  when  exercised  for  a  legitimate  pur- 
pose and  in  a  legitimate  manner.  So,  in  a  contest  between  capital 
and  lal)or,  on  the  one  hand  to  secure  higher  wages,  and  on  the  other 
to  resist  it,  argument  and  persuasion  to  win  support  and  co()ix>ration 
from  others  are  proper  to  eitiuM'  side,  provided  they  are  of  a  character 
to  leave  the  persons  solicited  feeling  at  liberty  to  comply  or  not,  as 
they  please.  Likewise,  a  union  may  appoint  pickets  or  a  committee 
to  visit  the  vicinity  of  factories  for  the  purpose  of  taking  note  of  the 
persons  emplov<Ml,  and  to  secure,  if  it  can  be  done  by  lawful  means, 
their  names  and  places  of  residence  for  the  purpose  of  jx'aceful  visita- 
tion." 

With  the  rule  laid  down  in  this  case  I  am  in  full  accord.  I  am  no 
less  anxious  to  protect  striking  workmen  who  are  acting  within  their 
rights  than  I  am  determined  to  protect  the  rights  of  otiiers  who  are 
S(>eking,  or  engaged  in,  lawful  employment. 

Some  of  the  defendants  named  in  this  case  arc  shown  to  have 
participated  in   violence  and  intimidation.     As  to  most  of  tht^  de- 


210  LEGALITY   OF   MEANS   USED  [CHAP.  IV 

fendants,  there  is  a  total  absence  of  testimonj^  respecting  them.  True, 
it  is  stated  by  some  of  the  witnesses  that  large  nmnbers  of  strikers 
were  congregated  in  the  neighborhood  of  the  works,  and  used  threat- 
ening and  intimidating  language  to  emploj^ees  and  officers  of  the 
complainant.  Undoubtedly  such  conduct  is  unlawful.  The  presence 
of  a  large  number  of  strikers,  under  such  circumstances,  is  in  itself 
intimidating.  But  no  proof  has  been  offered  identifying  any  of  the 
persons  who  made  up  this  intimidating  crowd  of  strikers.  It  is,  as 
I  have  said,  menacing  and  intimidating  for  any  considerable  num- 
ber of  strikers  to  assemble  for  the  pm-pose  of  "picketing"  or  "per- 
suading." And  so,  also,  would  be  the  establishing  of  many  picketing 
stations  in  the  same  neighborhood,  for  the  effect  of  the  mass  would 
be  the  same,  in  either  case.  No  intelligent  man  fails  to  understand 
what  is  meant  by  picketing  which  is  solely  for  the  purpose  of  lawful 
persuasion. 

Some  claim  is  made  on  the  part  of  the  complainant  that,  in  view 
of  the  testimony  of  the  general  character  to  which  I  have  just  re- 
ferred, any  injunction  allowed  in  this  case  ought  to  reach  all  of  the 
defendants  named  in  the  bill;  and  the  chief  ground  upon  which  the 
propriety  of  this  claim  is  rested  is  that,  except  Keegan  and  Keck, 
all  of  the  men  went  out  on  strike,  and  that,  if  they  were  law-abiding 
and  did  not  intend  to  participate  in  acts  of  intimidation  or  violence, 
they  would  not  be  harmed  by  the  issuance  of  an  injunction  against 
them.  I  cannot  escape  the  conclusion  that,  under  the  circumstances 
of  this  case,  where  the  defendants  are  made  such  in  their  individual 
capacity,  and  not  in  any  organized  capacity,  it  would  be  a  gross  in- 
justice to  attach  to  persons  who  have  not  been  shown  to  be  partic- 
ipants in  these  transactions  the  stigma  of  an  injunction,  or  to  make 
them  —  as  they  might  be  without  further  order  of  the  court  —  sub- 
ject  tp  the  payment  of  any  costs  which  necessarily  accrue  in  such  a 
/case.  In  the  case  in  Indiana,  to  which  reference  has  just  been  made, 
[a  somewhat  similar  situation  arose,  and  there  the  injunction  was 
allowed  against  such  of  the  defendants  as  were  shown  to  have  partic- 
ipated in  the  violence  or  intimidation.  Those  who  were  not  thus 
found  to  be  unlawful  participants  in  wrongful  acts  were  not  en- 
l^jqined.  That  will  V)e  the  order  in  this  case.  Nor  is  it  necessary,  in 
order  to  hold  the  d(^fendants  who  are  not  enjoincnl  to  a  strict  com- 
pliance with  the  terms  of  such  an  injunction  as  will  be  issued  in  this 
case,  that  they  should  be  named  as  defendants  who  ought  to  be  en- 
joined. .  .  . 

As  to  those  who  arc  parties  to  this  bill,  and  not  included  by  name 
within  its  terms  as  violators  of  the  rights  of  others,  they  must  be 
held  to  have  knowledge  of  this  opinion,  and  of  the  decree  herein. 
Union  Pacific  Ry.  Co.  (C.  C.)  v.  Ruef,  120  Fed.  116.  I  cannot  help 
but  believe  that  the  officers  of  the  Int(>rnational  Association  of 
Machinists,  and  the  leading  and  infhienfial  spirits  among  the  men 
who  have  gone  on  strike,  will  fully  understand  th(>  views  of  the 


SECT.  V]  PICKETING  211 

court  as  to  their  rights  and  duties,  and  tliat  a  real  and  sueces-sful 
effort  will  be  made  to  keep  the  conduct  of  those  with  whom  they  are 
associated  within  the  limits  wliieh  are  defined  in  this  (Ji)inion.  The 
pn^priety  of  tiie  rule  ;us  to  picketin^^  ;us  1  jiave  laid  it  down  is,  a.s  to 
them,  on  trial. 

I  find  that  the  defendants  Jaccjh  Jeuk,  .](jhn  Martiiu-k,  Sam  Eavou, 
W.  M.  Palmer,  I  lank  Herman,  and  T.  Snell  ou^ht  to  Ix?  enjoined; 
and  an  order  may  Im-  entered,  in  the  terms  of  the  restrainin^;  order 
heretofore  issued,  enj<jininK  tlu'in,  and  all  other  fXTsons,  from  in- 
terfering with  the  lousiness  of  the  complainant  and  its  employees, 
or  those  who  are  proposing  to  enter  its  employment,  as  defined  in 
such  order. 

The  application  for  a  preliminary  injunction  against  the  other 
defendants  named  is  denied.' 

■  Legality  of  Pkaceful  PiCKETrNG.  Aorording  to  the  weight  of  authority 
mere  peaceful  pickctinn,  if  it  involves  no  intimidation,  is  not  illegal. 

In  Rogers  v.  Kvarts,  17  \.  Y.  Supp.  2()4  fafTd.  144  X.  Y.  189),  at  [)[).  2<i8,  209, 
Smith,  J.,  .says:  "The  tendency  of  modern  thought  and  judicial  derision  Ls  to  the 
enlargement  of  the  right  of  combination,  whether  of  capital  or  of  hilM)r.  ...  I 
think  the  law  now  jxTmits  workmen,  at  Iea.st  within  a  limited  territory,  to  com- 
bine together,  and  by  peaceal)ie  means  to  .seek  any  legitimate  advantage  in  their 
trade.  The  increa.se  of  wages  is  such  an  advantage.  The  right  to  combine  involves 
of  necessity  the  right  to  persuade  all  co-laborers  to  join  in  the  combination.  This 
right  to  persuade  co-laborers  involves  the  right  to  persuade  new  employees  to  join 
the  comiiination.    This  is  hut  a  corollary  of  the  right  of  combination.   .   .   . 

"It  may  be  impo.s.sible  to  lay  down  a  general  rule  as  to  what  surrounding  cir- 
cumstances will  characterize  persuiusion  and  entreaty  as  intimidation.  Each  case 
must  probably  de[)end  upon  its  own  .surroundings.  But  where  the  evidence  pre- 
sents such  a  case  as  to  convince  the  court  that  the  em[)loyees  are  tx;ing  induced  to 
leave  the  em[)Ioyer  by  o|)crafing  upon  their  fears  rather  than  upon  their  judg- 
ments or  their  sympathy,  the  court  will  be  cjuick  to  lend  its  strong  arm  to  his 
protection." 

In  Fu.ster  v.  Retail  Clerks'  As.sn.,  39  Mi.sc.  (N.  Y.)  4S,  holding  that  peaceful 
picketing  was  not  per  .se  imlawful,  and  that  therefore  the  court  would  not  enjoin 
it,  Andrews,  J.,  on  page  57  .says:  "Mere  picketing,  therefore,  if  it  is  j)eaceful,  if 
there  is  no  threat  or  intimidation,  if  it  is  confined  to  .simple  fwrsua.sion,  I  do  not 
regard  in  any  sense  as  unlawful,  whatever  may  be  the  motive  of  the  picketers." 
So,  in  Goldfield  Consolidatetl  Mines  Co.  v.  Union,  l.')9  Fed.  .500,  .521,  the  court 
says:  "Peaceful  picketing,  in  theory,  is  not  only  po.ssible,  but  jK^rmissible,  and  as 
long  as  it  is  confined  strictly  and  in  good  faith  to  gaining  information  and  to  peace- 
ful persuasion  .and  argmnent,  it  is  not  forbidden  by  law." 

Ix'ading  ca.scs  in  accord  arc  Kargcs  Furniture  Co.  c.  .\malgamatcd  Wootl- 
workers'  Local  Union,  1()5  Ind.  421,  4.iO,  431;  ■h)nes  v.  Van  Winkle  (Jin  &  Ma- 
chine Works,  131  C.a.  .33(),  340;  Steffes  v.  Motion  Picture  Union,  1.3t>  .Minn.  200; 
Root  V.  .\nderson,  207  S.  W.  (Mo.)  2.55;  Cumi)erland  Cda.ss  .Mfg.  Co.  v.  OUiss 
Bottle  Blowers'  A.ssn..  .59  \.  .1.  P^q.  49;  Flet<her  Co.  c.  Int.  .\.ssn.  of  .Machinists, 
55  Atl.  (N.  J.)  1077;  Rogers  r.  Evarts,  17  N.  Y.  Supp.  2(14 ;  Levyc.  Ro.sonstein, 
66  N.  Y.  Supp.  101;  Krebs  v.  Rosenstein,  31  Misc.  tUil;  Foster  c.  Retail  C'lerks' 
Int.  Prot.  A.s.sn.,  .39  Misc.  4S;  Mills  v.  U.  S.  Printing  C<i.,  99  App.  Div.  (N.  Y.) 
605  (affd.  199  \.  Y.  7tl);  Searle  Mfg.  Co.  v.  Terry,  .5ti  Mi.sc.  2li5;  Jones  v.  Maher, 
62  Misc.  38.8;  Michaels  r.  Millman,  112  Mi.sc.  .39.5;  McCormick  r.  Union,  13  Ohio 
Cir.  Ct.  (n.  s.I  .545;  C.reenfield  r.  Central  Libor  Council,  192  Pac.  (Ore.)  7H;}; 
Everett  Waddey  Co.  r.  Richmond  Typunr.iphicil  Union.  105  \'a.  l.KS,  197;  Gold- 
field  Consolidated   Mining  Co.  v.  Culdlicld   Minors'   Union,   1.59  Fed.  500.  521; 


212  LEGALITY   OF    MEANS    USED  [CHAP.  IV 

ATCHISON,  T.  &  S.  F.  RY.  CO.  v.  GEE 
United  States  Circuit  Court,  S.  D.  Iowa.     1905 

139  Fed.  582 

McPherson,  District  Judge. ^  .  .  .  But  as  to  one  phase  of  the 
case  there  is  no  denial,  but  practically  a  confession,  with  the  alleged 
and  boasted  right  to  practice  it.  A  system  of  "pickets,"  for  more 
than  a  year,  around  and  near  by  places  to  the  shops  of  the  company, 
has  been  kept  up  by  all  the  accused  and  others.  The  pretense  of  this 
picketing  is  the  right  to  converse  with  the  new  employees  and  per- 
suade them  to  quit,  and  the  further  pretense  that  they  desire  to  see 
who  are  at  work.  This  picketing  is  done  by  details  of  pickets,  as- 
signed by  others;  they  taking  turn.  At  all  hours  when  men  are 
going  to  and  from  work,  morning,  noon,  and  evening,  the  workmen 
must  go  through  and  by  pickets,  sometimes  two,  four,  six,  and  more, 
at  a  place.  At  times  the  paths  and  walks  are  obstructed.  At  times 
the  pickets  are  near  by,  making  grimaces,  and  at  times  acting  as  if 
violence  were  intended,  and  at  times  uttering  profanity  and  vulgarity. 
There  is  and  can  be  no  such  thing  as  peaceful  picketing,  any  more 
than  there  can  be  chaste  vulgarity,  or  peaceful  mobbing,  or  lawful 
lynching.  When  men  want  to  converse  or  persuade,  they  do  not 
organize  a  picket  line.  When  they  only  want  to  see  who  are  at  work, 
they  go  and  see,  and  then  leave,  and  disturb  no  one  physically  or 
mentally.  But  such  picketing  as  is  displayed  in  the  case  at  bar  by 
the  evidence  does,  and  is  intended  to,  annoy  and  intimidate.  The 
argument  seems  to  be  that  anything  short  of  physical  violence  is 
lawful.  One  man  can  be  intimidated  only  when  knocked  down.  But 
the  peaceful,  law-abiding  man  can  be  and  is  intimidated  by  gesticu- 
lations, by  menaces,  by  being  called  harsh  names,  and  by  being 
followed,  or  compelled  to  pass  by  men  known  to  be  unfriendly.  Per- 
haps such  a  man  may  not  be  a  bully,  but  is  frail  in  size  and  strength, 
or  he  may  be  a  timid  man;  but  such  a  man  is  just  as  much  entitled 
to  go  and  come  in  quiet,  without  even  mental  disturbance,  as  has 
the  man  afraid  of  no  one  and  able  with  or  without  weapons  to  cope 
with  all  comers.  The  frail  man,  or  the  man  who  shuns  disturbances, 
or  the  timid  man,  must  be  protected,  and  the  company  has  the  right 
to  employ  such. 

The  test  of  manhood,  and  the  rights  of  man  or  property,  is  not 
to  be  measured  by  braggarts  or  bullies,  or  vulgarity,  or  profanity, 
and  the  saloons  must  not  be  the  place  where  supposed  rights  are  to 
be  decreed,  as  the  evidence  in  this  case  shows  has  been  attempted 

Iron  Molders'  Union  v.  Allis-Chalmers  Co.,  166  Fed.  45;  Niles-Bement-Pond  Co. 
V.  Iron  .Molders'  Union,  246  Fed.  851,  860. 

For  casfis  amt'-a,  s(!ft  note  1,  p.  213,  infra. 

As  to  rif^ht  of  oini)lf)yers  to  picket,  see  Atkins  v.  Fletcher  Co.,  65  N.  J.  Eq.  658. 

'  Only  that  part  of  the  opinion  which  deals  with  the  question  of  picketing  is 
given.  —  Ed. 


SECT.  V]  PICKETING  213 

many  tiinos  by  some  of  those  on  the  strike.  The  evidence  shows 
that  many  of  the  men  out  on  the  strike  are  iK'aceable  and  law-ahid- 
ing  men,  who  rcco^^Mi/c  all  that  I  liave  said,  and  who  liave  sought 
and  obtained  honorable  cniijhjyment,  some  in  other  lines  of  employ- 
ment in  the  city,  and  some  elsewhen;;  but  several  prefer  the  course 
of  staying  about  enKap;ed  in  the  so-called  picketing,  by  which  they 
mean  to  hara.ss,  provcjke,  and  intiiniilate  those  who  pn-fcr  work  to 
idleness,  and  those  wIkj  i)refer  the  shop  to  the  do^^f^cries.  This  is 
done  by  some  who  give  their  time  to  intimidating  lujtel  and  lx)ard- 
ing  housekeepers  for  boarding  the  workingmen.  Such  law-breaking 
is  to  the  great  injury  of  the  workingmen  and  to  the  company;  and 
such  law-breaking  must  be  broken  up,  else  our  laws  arc  wltln^ut 
force,  and  our  courts  and  all  in  authority  serve  no  useful  purjxise.'  .  .  . 

CLAYTON  ACT.     Section  20 
See  supra,  p.  145,  for  the  text  of  the  Act. 

AMERICAN  STEEL  FOUNDRIES  v.  THE  TRI-CITY 
CENTRAL  TRADES  COUNCIL 

Supreme  Court  of  the  United  States.     1921 
257  U.S.—^ 

^Tr.  Chief  Justice  Taft  delivered  the  opinion  of  the  court. 

The  American  Steel  Foundries  is  a  New  Jersey  corporation  op- 
erating a  large  plant  for  the  manufacture  of  steel  products  in  Granite 
City,  Illinois.  In  May,  1914,  it  filed  a  bill  in  the  District  Court 
for  the  Southern  District  of  Illinois  to  enjoin  the  defendants,  the 
Tri-City  Central  Trades  Council,  and  fourteen  individual  defend- 
ants, some  of  them  officers  of  the  Council,  all  of  them  citizens  of 
other  states  than  New  Jersey,  from  carrying  on  a  conspiracy  to  pre- 
vent complainant  from  retaining  and  obtaining  skilled  laborers  to 
operate  its  plant.  The  bill  charged  that  the  conspiracy  was  being 
executed  V>y  organized  picketing,  accompanied  by  threats,  intimida- 
tion and  violence  toward  persons  employed  or  seeking  cmplo^'meut 

'  For  further  proceedings,  see  140  Fed.  153.  ^ 

Tho  doctrine  that  all  picketing  is  illegal  is  followed  in  California,  Illinois, 
Michigan,  and  perhaps  New  Jersey,  and  is  supported  by  occa,sional  decisions  in 
other  states.  Some  of  the  leading  ca.ses  are  Pierce  c.  Stablemen's  l^nion,  l.">(j  C'al. 
70;  Rosenberg  v.  Retail  Clerks'  .\.s.sn.,  27  Cal.  App.  Dec.  7()!t;  Barnes  v.  Chicago 
Typographical  Union.  232  111.  424;  Franklin  Union  v.  People,  220  111.  3.^5;  Lyon 
&  Ilealy  r.  Piano,  etc,  Workers'  Cnion,  2S!>  111.  170;  Vegelahn  r.  C.untner,  lt)7 
Mass.  92  (but  see  di.s,sentir>tr  opinions);  Beck  v.  Ry.  Teamsters'  Tnion.  IIS  Mich. 
497;  Claragc  v.  Luphringer,  202  Mich.  (iPJ;  Jona.s  Cda-ss  Co.  r.  Cda.ss  Blowers' 
Assn.,  72  X.  J.  Kq.  0.53  (affd.  77  X.  J.  E<i.  219);  Baldwin  Luml)cr  Co.  r.  Bn)ther- 
hood  of  Teamsters,  91  X.  J.  Eq.  240.  Compare  Webb  r.  Cooks',  etc.,  Union,  205 
S.  W.  (Tex.)  466  (acts  amounting  to  intimidation);  Baasch  v.  Cooks',  etc.,  Union, 
99  Wa.sh.  37S. 

»  Decided  Dee.  5,  1921;  42  Sui>.  Ct.  72. 


214 


LEGALITY   OF   MEANS   USED 


[CHAP.  IV 


there.  The  defendants  in  their  answer  admitted  that  the  Central 
Trades  Council  had  established  a  picket  upon  streets  leading  to  the 
plant,  with  instructions  to  notify  all  persons  entering  it  that  a  strike 
had  been  called  because  of  reduction  of  wages,  and  to  use  all  hon- 
orable means  to  persuade  such  persons  not  to  take  the  places  of  the 
men  on  the  strike;  admitted  the  participation  of  individual  de- 
fendants in  the  picketing,  but  denied  threats  of  injury  or  violence  or 
responsibility  for  the  violence  that  admittedly  had  occurred.  After 
replication  was  filed,  the  cause  was  heard.  A  restraining  order  issued 
on  filing  of  the  bill,  and  a  final  decree  was  entered  by  which  defend- 
ants were 
\^^"  perpetually  restrained  and  enjoined  from  in  any  way  or  manner 
whatsoever  by  use  of  persuasion,  threats,  or  personal  injury,  in- 
timidation, suggestion  of  danger  or  threats  of  violence  of  any  kind, 
interfering  with,  hindering,  obstructing  or  stopping,  any  person 
engaged  in  the  employ  of  the  American  Steel  Foundries  in  connec- 
tion with  its  business  or  its  foundry  in  the  City  of  Granite  City, 
County  of  Madison,  State  of  Illinois,  or  elsewhere; "^nd  from  in- 
terfering by  persuasion,  violence  or  threats  of  violence,  in  any  man- 
ner with  any  person  desiring  to  be  employed  by  said  American 
;  Steel  Foundries  in  its  said  foundry  or  plant;  and  from  inducing  or 
:  attempting  to  compel  or  induce  by  persuasion,  threats,  intimida- 
tion, force  or  violence  or  putting  in  fear  or  suggestions  of  danger 
any  of  the  employees  of  the  American  Steel  Foundries  or  persons 
seeking  employment  with  it  so  as  to  cause  them  to  refuse  to  per- 
form-^ny  of  their  duties  as  employees  of  the  American  Steel  Found- 
riea^i^^nd  from  preventing  any  person  by  persuasion,  threats,  in- 
timidation, force  or  violence,  or  suggestion  of  danger,  or  violence 
from  entering  into  the  employ  of  said  American  Steel  Foundries;  -.'.  . 
and  from  picketing  or  maintaining  at  or  near  the  premises  of  the  com- 
"plainant,  or  on  the  street^  leading  to  the  premises  of  said  complainant, 
any  picket  or  picketi^.jmd  from  doing  any  acts  or  things  whatever 
in  furtherance  of  any  conspiracy  or  combination  among  them,  or 
any  of  them,  to  obstruct,  or  interfere  with  said  American  Steel 
Foundries,  its  officers,  agents  or  employees,  in  the  free  and  unre- 
strained control  and  operation  of  its  plant,  foundrj"-  and  property 
and  the  operation  of  its  business."  .  .  } 

The  Circuit  Court  of  Appeals  modified  the  final  decree  by  strik- 
ing out  the  word  "persuasion"  in  the  four  places  in  which  it  oc- 
curred, and  by  inserting  after  the  clause  restraining  picketing  the 
following:  "in  a  threatening  or  intimidating  manner."  238  Fed. 
Rep.  728. 

The  Tri^City  Central  Trades  Council  is  a  labor  organization  com- 
posed of  representatives  of   thirty-seven  trade  unions  of   Granite 
City,  Madison   and   Venice,  adjoining  towns   in   Illinois,  including 
among   them   el(!ctricians,    ('ranem(Mj,    mill    hands,    machinists,    and 
'  Part  of  tlic  injunction  is  omitted.  —  Ed. 


SECT.  V]  PICKETING  215 

stationary  engineers.  In  April,  1914,  the  complainant,  which  ordi- 
narily in  full  operation  employee!  1000  men,  and  whose  plant  had 
been  shut  down  since  Novemljer  of  the  previous  year,  resumed  o|>er- 
ations  with  about  350  of  its  regular  men.  .  .  .  Half  lA  the  skilled 
workmen  were  given  wages  at  rates  from  two  cents  to  ten  cent*!  an 
hour  below  those  paid  before  the  plant  had  shut  down.  The  Trades 
Council  was  advised  of  this  about  April  15th,  and  apixjinted  a  com- 
mittee to  secure  reinstatement  of  the  previous  wages.  The  manager 
of  the  comi)laiiiaiit  tolil  tiiem  that  he  ran  an  op(  n  shop,  did  not 
recognize  organized  labor  and  would  not  deal  with  the  committee, 
but  would  entertain  any  complaint  by  an  employee.  The  Council 
thereupon,  on  April  22d,  declared  a  strike  on  complainant's  plant.  .  .  . 
Only  two  men,  defendants  (.'hurchill  and  ('(;ok,  acted  upon  the  or- 
der to  strike.  Churchill  was  a  member  of  the  Machinists'  I'nion. 
Cook  wjis  not  a  member  of  any  union.  The  Council  then  established 
a  picket,  which  was  carried  on  for  thn^e  or  four  weeks  without  in- 
termi.ssion  until  the  bill  was  filed  on  May  18th,  and  a  restraining 
order  i.ssued.  .  .  .  The  evidence;  showed  that  the  pickets  would 
stand  ai)out  near  the;  Waixish  tracks,  .sometimes  on  the  l-'oundries' 
side,  sometimes  on  the  depot  side,  sometimes  on  Niedringhaus  Av- 
enue, and  that  there  were  three  or  four  groups  of  them  varying  from 
four  to  a  dozen  in  each  group.  The  headepiarters  of  all  the  groups 
was  at  tlie  Wabash  depot. 

There  was  iin  assault  on  April  30th,  in  which  one  Ilaefner,  an  em- 
ployee, was  attacked  by  three  of  the  picketers.  On  May  8th,  a  man 
named  Crabtree  and  four  other  employees  were  attacked  by  a  group 
of  more  than  seven  of  the  pickets.  On  May  13th,  another  as.sault 
occiUTcd,  which  developetl  into  a  mob,  and  two  witnes.ses  for  com- 
plainant swore  positively  that  the  President  of  the  Trades  Council, 
Galloway,  was  engaged  in  this  disturbance  and  was  throwing  bricks. 
There  were  other  assaults,  the  last  one  on  May  ISth  before  the  re- 
straining order  i.ssueil  that  day  reached  the  picketei-s.  Officers  of 
the  company  testified  that  a  number  of  men  wounded  in  these  as- 
saults were  brought  into  the  plant.  All  disturbances  ceased  after 
the  restraining  orders  were  served. 

Calloway  testified  he  was  present  at  the  plant  three  mornings 
for  about  fifteen  or  tw(>nty  minutes,  and  four  or  five  evenings  for 
maybe  half  an  hour;  that  he  engaged  in  no  violence  while  he  was 
there  and  saw  none;  that  the  representatives  of  the  Central  Trades 
were  there  doing  picke^t  duty,  and  that  the  closest  he  saw  them  to  the 
plant  was  20  feet  in  front  of  Wabash  d<>pot;  that  the  Central  Trades 
did  not  instruct  anybody  to  a.ssault  anyone,  but  told  them  to  picket 
the  streets  leading  to  the  plant,  and  ask  the  men  not  to  go  into  the 
plant  or  take  work  imder  the  reduc(>(l  wages;  .  .  .  that  the  pickets 
were  not  autliorized  to  commit  an  unlawful  act.   .   .   . 

Hartl)eck,  wiio  was  l)usiness  agent  and  secretary  of  the  Black- 
smiths' I'nion,  said  that  he  acted  on  tiie  picket  line  every  time  lie 


216  LEGALITY    OF    MEANS    USED  [CHAP.  IV 

went  over  there,  sometimes  in  the  evening,  sometimes  at  noon  time. 
He  said  the  pickets  would  approach  a  man  and  tell  him  the  condi- 
tions and  request  him  to  come  out;  that  he  did  that  himself,  but 
that  he  never  threatened  anyone  and  never  used  any  violence  of 
anj^  kind.  He  said:  "In  my  estimation  the  four  or  five  witnesses 
who  swore  to  my  presence  at  different  times  to  assault  testified 
falsely."  .  .  ,' 

It  is  clear  from  the  evidence  that  from  the  outset,  violent  meth- 
ods were  pursued  from  time  to  time  in  such  a  way  as  to  characterize 
the  attitude  of  the  picketers  as  continuously  threatening.  A  number 
of  employees,  sometimes  fifteen  or  more,  slept  in  the  plant  for  a 
week  during  the  trouble,  because  they  could  not  safely  go  to  their 
homes.  The  result  of  the  campaign  was  to  put  employees  and  would- 
be  employees  in  such  fear  that  many  abandoned  work  and  this 
seriously  interfered  with  the  complainant  in  operating  the  plant 
until  the  issue  of  the  restraining  order. 

The  first  question  in  the  case  is  whether  sec.  20  of  the  Clayton 
Act,  October  15,  1914,  chap.  323,  38  Stat.  738,  is  to  be  applied  in 
this  case.  .  .  . 

The  prohibitions  of  sec.  20,  material  here,  are  those  which  forbid 
an  injunction  against,  first,  recommending,  advising  or  persuading 
others  by  peaceful  means  to  cease  employment  and  labor;  second, 
attending  at  any  place  where  such  person  or  persons  may  lawfully 
be  for  the  purpose  of  peacefully  obtaining  or  communicating  in- 
formation, or  peacefully  persuading  any  person  to  work  or  to  abstain 
from  working;  third,  peaceably  assembling  in  a  lawful  manner  and 
for  lawful  purposes.  This  court  has  already  called  attention  in  the 
Duplex  case  to  the  emphasis  upon  the  words  "peaceable"  and  "law- 
ful" in  this  section.  245  U.  S.  443,  473.  It  is  clear  that  Congress 
wished  to  forbid  the  use  by  the  Federal  courts  of  their  equity  arm  to 
prevent  peaceable  persuasion  by  employees,  discharged  or  expectant, 
in  promotion  of  their  side  of  the  dispute,  and  to  secure  them  against 
juclicial  restraint  in  obtaining  or  communicating  information  in  any 
place  where  they  might  lawfully  be.  This  introduces  no  ncwjjrin- 
eiple  into  the  equity  jurisprudence  of  those  courts.  It  is  merely 
declaratory  of  what  was  the  best  practice  always.  Congress  thought 
it  wise  to  stabilize  this  rule  of  action  and  render  it  uniform. 

The  object  and  prolilem  of  Congress  in  sec.  20,  and  indeed  of  courts 
of  equity  before  its  enactment,  was  to  reconcile  the  rights  of  the 
employer  in  his  business  and  in  the  access  of  his  employees  to  his 
place  of  business  and  egress  therefrom  without  intimidation  or  ob- 
struction, on  the  one  hand,  and  the  right  of  the  employees,  recent 
or  expectant,  to  use  peaceable  and  lawful  means  to  induce  present 
employees  and  would-be  employees  to  join  their  ranks,  on  the  other. 
If  in  their  attempts  at  persuasion  or  communication  with  those 
whom  they  would  enlist  with  them,  those. of  the  labor  side  adopt 
'  Other  evidence  is  omitted.  —  Ed. 


SECT.  V]  PICKETING  217 

methods  which  however  lawful  in  their  announced  purpose  ine\'i- 
tably  lead  to  intimidation  and  obstruction,  then  it  is  the  court's 
duty  wliieh  the  terms  of  sec.  20  do  not  modify,  so  to  limit  what  the 
propa}i;an(iists  do  jus  to  time,  manner  and  place  lus  shall  prevent  in- 
fractions of  the  law  and  violations  of  the  right  of  the  employees,  and 
of  the  employer  for  whom  they  wish  to  work. 

How  far  may  men  go  in  persuasion  and  conmmnication  and  still 
not  violate  the  right  of  tlK)S(!  whom  they  would  influence?  In  going 
to  and  from  work,  men  hav(;  a  right  to  as  free  a  pas.siige  without 
obstruction  as  the  streets  afford,  consistent  with  the  right  of  others 
to  enjoy  the  same  privilege.  We  are  a  social  {X'0[)le  and  the  atrcost- 
ing  by  one  of  another  in  an  inoffensive  way  and  an  offer  by  one  to 
communicate  and  discuss  information  with  a  view  to  influencing 
the  other's  action  are  not  regarded  as  aggression  or  a  violation  of 
that  other's  rights.  If,  however,  the  offer  is  declined,  as  it  may' 
rightfully  l^e,  then  pt^rsistence,  importunity,  following  and  dogging 
bec()m(>  unjustifial)le  aimoyance  and  obstruction  which  Ls  likely 
soon  to  savor  of  intimidation.  From  all  of  this  the  p<'rsori  souglit  to 
be  influenced  has  a  right  to  be  free  and  his  employer  has  a  right  to 
have  him  free. 

The  nearer  this  importunate  intercepting  of  employees  or  would-l>e 
employees  is  to  the  place  of  business,  the  greater  the  obstruction 
and  interference  with  the  business  and  especially  with  the  propt'rty 
right  of  access  of  the  employer.  Attempted  discus.sion  and  argu- 
ment of  this  kind  in  such  proximity  is  certain  to  attract  attention 
and  congregation  of  the  curious,  or,  it  may  be,  interested  bystand- 
ers, and  tiuis  to  increase  the  ol)struction  as  well  as  the  aspect  of  in- 
timidation which  the  situation  quickly  assumes.  In  the  present 
case  the  three  or  four  groups  of  picketei-s  were  made  up  of  from  four 
to  twelve  in  a  group.  Th(\y  constituted  the  picket  line.  Each  union 
interested,  electricians,  cranemen,  machinists  and  blacksmiths,  had 
several  representatives  on  the  picket  line,  and  assaults  and  violence 
ensued.  They  began  early  and  continued  from  time  to  time  during 
the  three  weeks  of  the  strike  after  the  picketing  began.  All  infor- 
mation tendered,  all  arguments  advanced  and  all  persuasion  used 
under  such  circumstances  were  intimidation.  They  could  not  l>e 
othonviso.  It  is  idle  to  talk  of  peaceful  communication  in  such  a 
place  and  under  such  conditions.  The  numbers  of  the  pickets  in  the 
groups  constituted  intimidation.  The  name  "picket"  indicated  a 
militant  purpose,  inconsistent  with  p(«aceable  persuasion.  The 
crowds  they  drew  made  the  passage  of  the  employees  to  and  from 
the  place  of  work,  one  of  running  the  gauntlet.  Persuiusion  or  com- 
munication attempted  in  such  a  presence  and  under  such  conditions 
was  anything  but  peaceal)li'  and  lawful.  When  one  or  more  a.ssaults 
or  disturbances  ensued,  they  characterizeil  the  whole  campaign, 
which  became  effective  because  of  its  intimidating  charact<T,  in 
spite  of  the  admonitions  given  l)y  the  leaders  to  their  followers  as  to 


^ 


218 


LEGALITY   OF   MEANS   USED 


[CHAP.  IV 


lawful  methods  to  be  pursued,  however  sincere.  Our  conclusion  is 
that  picketing  thus  instituted  is  unlawful  and  cannot  be  peaceable 
and  may  be  properly  enjoined  by  the  specific  term  because  its  mean- 
ing is  clearly  understood  in  the  sphere  of  the  controversy  by  those 
who  are  parties  to  it.  We  are  supported  in  that  view  by  many  well 
reasoned  authorities,  although  there  has  been  contrariety  of  view.  .  .  . 
A  restraining  order  against  picketing  will  advise  earnest  advo- 
cates of  labor's  cause  that  the  law  does  not  look  with  favor  on  an 
enforced  discussion  of  the  merits  of  the  issue  between  individuals 
who  wish  to  work,  and  groups  of  those  who  do  not,  under  conditions 
which  subject  the  individuals  who  wisli  to  work  to  a  severe  test  of 
their  nerve  and  physical  strength  and  courage.  But  while  this  is  so, 
we  must  have  every  regard  to  the  congressional  intention  manifested 
in  the  act  and  to  the  principle  of  existing  law  which  it  declared,  that 
ex-employees  and  others  properly  acting  with  them  shall  have  an 
opportunity,  so  far  as  is  consistent  with  peace  and  law,  to  observe 
who  are  still  working  for  the  employer,  to  communicate  with  them 
and  to  persuade  them  to  join  the  ranks  of  his  opponents  in  a  lawful 

I  economic  struggle.  Regarding  as  primary,  the  rights  of  the  em- 
ployees to  work  for  whom  they  will,  and,  undisturbed  by  annoying 
importunity  or  intimidation  of  numbers,  to  go  freely  to  and  from 
their  place  of  labor,  and  keeping  in  mind  the  right  of  the  employer 
incident  to  his  property  and  business  to  free  access  of  such  employees, 
what  can  be  done  to  reconcile  the  conflicting  interests? 

Each  case  must  turn  on  its  own  circumstances.  It  is  a  case  for  the 
flexible  remedial  power  of  a  court  of  equity  which  may  try  one  mode 
of  restraint,  and  if  it  fails  or  proves  to  be  too  drastic,  may  change 
it.  We  think  that  the  strikers  and  their  sympathizers  engaged  in  the 
economic  struggle  should  be  limited  to  one  representative  for  each 
point  of  ingress  and  egress  in  the  plant  or~"pTace  of  business  and  that 
all  others  be  enjoined  from  congregating  or  loitering  at  the  plant  or 
in  the  neighboring  streets  by  which  access  is  had  to  the  plant,  that 
such  representatives  should  have  the  right  of  observation,  com- 
munication and  persuasion  but  with  special  admonition  that  their 
communication,  arguments  and  appeals  shall  not  be  abusive,  li- 
belous or  threatening,  and  that  they  shall  not  approach  individuals 
together  but  singly,  and  shall  not  in  their  single  eff'orts  at  com- 
munication or  persuasion  obstruct  an  unwilling  listener  by  impor- 

I  tunate  following  or  dogging  his  steps.  This  is  not  laid  down  a^.^ 
rigid  rule,  but  only  as  one  which  should  apply  to  this  case  under  the 
circumstances  disclosed  by  the  evidence  and  which  may  be  varied 
in  other  cases.  It  becomes  a  question  for  the  judgment  of  the  Chan- 
cellor who  has  heard  the  witnesses,  familiarized  himself  with  the 
locus  in  quo  and  observed  the  tendencies  to  disturbance  and  con- 

1  flict.    The  purpose  should  be  to  prevent  the  inevitable  intimidation 

\  of  the  presence  of  groups  of  pickets,  but  to  allow  missionaries. 


SECT.  V]  PICKETING  219 

With  these  views,  it  is  apparent  that  we  cannot  sustain  the  quah- 
fication  of  tiie  order  of  the  District  Court  which  the  Circuit  Court 
of  Appeals  made.  That  court  foHowed  the  cjise  of  Iron  Moldcrs* 
Ttiion  V.  AUis-Chahners  Co.,  1()()  Fed.  Kcp.  45,  and  modified  the 
order  of  the  District  Court  which  enjoined  defendants  "fnim  |)ickct- 
inj;  or  maintaining  ;'t  or  near  the  premises  of  tl»e  c<jmphiinant  (jf 
on  the  streets  leading  to  the  promises  of  said  comjjlainant,  any 
|)ickct  or  pickets"  hy  adcHrif*;  the  words  "in  a  threatening;  or  in- 
timidating; manner."  This  (piahhcation  seems  to  us  to  \h'  inade- 
quate. In  actual  result,  it  leaves  compliance  largely  to  the  discretion 
of  the  pickets.  It  ignores  the  necessary  element  of  intimidation  in 
the  presence  of  groups  lus  pickets.  It  does  not  .secure  jjractically 
that  which  the  court  must  secuic  and  to  which  the  comi)laiiKtnt  and 
his  workmen  are  entitled.  Tiie  phra.se  really  recognizes  as  legal  that 
which  bears  the  sinister  name  of  "picketing"  which  it  is  to  be  ol>- 
served  Congress  carefully  refrained  from  using  in  sec.  20. 

There  remains  to  consider,  so  far  an  defendants  Churciiill  and 
Cook,  the  ex-em ploy(M\s,  are  concerned,  the  part  of  the  decree  of 
the  District  Court  which  forbade  them  by  jx'rsuasion  to  induce  em- 
ployees, or  would-be  employees  to  leave,  or  stay  out  of,  complainant's 
employ.  The  effect  of  it  is  to  enjoin  persuasion  by  them  at  an}'  time 
or  place.  This  certainly  conflicts  with  .sec.  20  of  the  Clayton  Act. 
The  decree  must  be  modified  lus  to  these  two  defendants  by  striking 
out  the  word  "pci*suasion." 

The  second  important  question  in  the  case  is  as  to  the  form  of 
decree  against  the  Tri-City  Trades  Council  and  the  other  defend- 
ants. What  has  been  said  ius  to  picketing  applies  to  them,  of  course, 
as  fully  as  to  the  ex-employees,  l)ut  how  as  to  the  injunction  against 
persuasion? 

The  argument  made  on  behalf  of  the  American  I'oundries  in  sup-     ,, 
port  of  enjoining  persuasion   is  that  the  Tri-City  Central  Trades   J'v.^a/V^'^    ' 
Council    and    th(^    other    defendants    being    neither   employees    nor  7 

strikers  were  intruders  into  the  controversy,  and  were  engaged 
without  excuse  in  an  unlawful  conspiracy  to  injure  the  American 
Foundries  by  enticing  its  emplo3'ees,  and,  therefore,  should  bo  on- 
joined.  ... 

Is  interference  of  a  labor  organization  by  j^M-suasion  and  apjX'al 
to  induce  a  strike  against  low  wages,  under  such  circumstances 
without  lawful  excu.se  and  malicious?  We  think  not.  Labor  unions 
are  recognized  by  the  Clayton  Act  as  legal  wh(>n  instituted  for  mutual 
help  and  lawfully  carrying  out  their  legitimate  ol)jects.  They  have 
long  been  thus  recognized  by  the  courts.  They  were  organizetl  out 
of  the  necessities  of  the  situation.  A  single  employee  was  helpless 
in  dealing  with  an  employer.  He  was  dependent  ordinarily  on  l>is 
daily  wage  for  the  maintenance  of  himself  and  family.  If  the  em- 
ployer refu.sed  to  pay  him  the  wages  that  he  thought  fair,  he  was 
nevertheless  unable  to  leave  the  employ  and  to  resist  arbitran,-  and 


220  LEGALITY   OF   MEANS   USED  [CHAP.  IV 

unfair  treatment.  Union  was  essential  to  give  laborers  opportunity 
to  deal  on  equality  with  their  employer.  They  united  to  exert  in- 
fluence upon  him  and  to  leave  him  in  a  body  in  order  b}^  this  incon- 
venience to  induce  him  to  make  better  terms  with  them.  They  were 
withholding  their  labor  of  economic  value  to  make  him  pay  what 
they  thought  it  was  worth.  The  right  to  combine  for  such  a  lawful 
purpose  has  in  many  years  not  been  denied  by  any  court.  The  strike 
became  a  lawful  instrmnent  in  a  la\vful  economic  struggle  or  com- 
petition between  employer  and  employees  as  to  the  share  or  division 
between  them  of  the  joint  product  of  labor  and  capital  To  render 
this  combination  at  all  effective,  employees  must  make  their  com- 
bination extend  beyond  one  shop.  It  is  helpful  to  have  as  many  as 
may  be  in  the  same  trade  in  the  same  community  united,  because 
in  the  competition  between  employers  they  are  bound  to  be  affected 
by  the  standard  of  wages  of  their  trade  in  the  neighborhood.  There- 
fore, they  may  use  all  lawful  propaganda  to  enlarge  their  member- 
ship and  especially  among  those  whose  labor  at  lower  wages  will 
injure  their  whole  guild.  It  is  impossible  to  hold  such  persuasion 
and  propaganda  without  more,  to  be  without  excuse  and  malicious. 
The  principle  of  the  unlawfulness  of  maliciously  enticing  laborers 
still  remains  and  action  may  be  maintameH'"EHerefor  in  proper  cases, 
but  to  make  it  applicable  to  local  labor  unions,  in  such  a  case  as  this, 
seems  to  us  to  be  unreasonable.  .  .  . 

We  think  that  the  restraint  from  persuasion  included  within  the 
injunction  of  the  District  Court  was  improper,  and  in  that  regard 
the  decree  must  also  be  modified.  In  this  we  agree  with  the  Circuit 
Court  of  Appeals. 

The  decree  of  the  Circuit  Court  of  Appeals  is  reversed  in  part  and 
affirmed  in  part  and  the  case  is  remanded  to  the  District  Court 
for  modification  of  its  decree  in  conformity  vnth  this  opinion. 

Mr.  Justice  Brandeis  concurs  in  substance  in  the  opinion  and 
the  judgment  of  the  Court. 

Mb.  Justice  Clarke  dissents.' 


TRUAX  V.  CORRIGAN 

Supreme  Court  of  the  United  States.     1921 

257  U.S.  —  ^ 

Mr.  Chief  Justice  Taft  delivered  the  opinion  of  the  court. 

The  plaintiffs  in  error,  who  were  plaintiffs  below,  and  will  be  so- 
called,  own,  maintain  and  operate,  on  Main  Street,  in  the  city  of 
Bisbee,  Arizona,  a  restaurant,  known  as  the  "English  Kitchen.-*' 

1  Accc-^-  KoufFol  &  Esser  v.  Tntornat.  Assn.  of  Machinists,  116  Atl.  (N.  J.)  9 
(but  «ne  stroHK  dissontinp;  opinions). 

*  Decided,  Dec.  19,  1921;  42  Sup.  C't.  124. 


SECT.  V]  PICKETING  221 

The  defendants  are  cooks  and  waiters  formerly  in  the  employ  of  tlie 
plaintiffs,  together  with  the  labor  union  and  the  trades  assembly  (jf 
which  they  were  inonilMMS.  All  parties  are  residents  of  the  State  of 
Ai'izona. 

The  coiiiplaiiit  set  out  the  following  case: 

In  April,  1910,  a  dispute  arose  between  the  plaintiffs  and  the  de- 
fendants' union  concerning  the  terms  and  conditions  of  employment 
of  the  meml)ers  of  the  union.  The  [)laintiffs  refused  to  yield  to  the 
terms  of  the  union,  which  thci('U|)on  ordered  a  strike  of  those  of  its 
members  who  were  in  plaint  ills'  employ.  To  win  the  strike  and  to 
coerce  and  comixil  the  plaintilYs  to  comply  with  the  demands  of  the 
unTon7  the  cTeferidants  and  others  unknown  to  the  plaintiffs  entered 
into  a  conspiracy  antl  boycott  to  injun?  plaintiffs  in  their  restaurant 
and  restaurant  business,  by  inducing;  plaintiffs'  customers  and 
others  theretofore  well  and  favoral)ly  disposed,  to  cease  to  patronize 
or  trade  with  the  plaintiffs.  The  method  of  inducing  was  set  out  at 
length  and  included  picketing,  displaying  banners,  advertising  the 
strike,  denouncing  plaintiffs  as  "unfair"  to  the  union  and  appeali-^g 
to  customers  to  st^iy  away  from  the  "  lOnglish  Kitchen,"  and  the 
circulation  of  handl)ills  containing  abusive  and  libelous  charges 
against  plaintiffs,  their  employees  and  their  patrons,  and  intimations 
of  injury  to  future  patrons.  Copies  of  the  handbills  were  set  forth 
in  cxliibits  made  part  of  the  complaint. 

In  conse(iuence  of  defendants'  acts,  many  customers  were  induced 
to  cease  from  patronizing  plaintiffs,  and  their  daily  receipts,  which 
had  been  in  excess  of  the  sum  of  S15G  were  reduced  to  S75.  The 
complaint  averred  that  if  the  acts  were  coiitinued,  the  business 
would  be  entirely  destroyed,  and  that  the  plaintiffs  would  suffer 
great  and  irreparable  injury;  that  for  the  plaintiffs  to  seek  to  re- 
cover damages  would  involve  a  multiplicity  of  suits;  that  all  the 
defendants  were  insolvent,  and  would  be  unable  to  respond  in  dam- 
ages for  any  injury  resulting  from  their  acts  and  the  plaintiffs  were 
therefore  without  any  ade<iuate  remedy  at  law. 

The  complaint  further  averred  rliat  the  defendants  were  relying 
for  immunity  on  Paragraph  1464  of  the  Revised  Statutes  of  Ari- 
zona, 1013,  which  is  in  part  as  follows: 

''Xo  restraining  or(l(>r  or  injunction  shall  be  granted  by  any  court 
of  this  state,  or  a  judge  or  the  judges  thereof,  in  any  case  between 
an  employer  and  employees,  or  between  employers  and  employees, 
or  between  employees,  or  between  persons  employed  and  jx^rsons 
seeking  employment,  involving  or  growing  out  of  a  dispute  con- 
cerning terms  or  conditions  of  emploj'ment,  unlessiie('e.s.sary  to  nrc- 
vent  irreparable  injury  to  property  or  to  a"x^;fl2)^i*TVni^lrt^^^^^ 
p^artT'  1 1  irik  i  ng-4hr-rrp]^iiTiM7Tor  wKrch Tiijury  thiMTMsjiojiTJcgiiatP 
iTiTir'fly  Mf'~FTiw,~7rrTrt-iTUch  properTy^r  propTTty  rigm  must  be  de- 
snll^en^viTTrpnrticularity  in  the  application,  which  must  be  in  writr- 
ing  and  sworn  to  by  tiie  applicant  or  by  his  agent  or  attorney 


IV, 


O' 


222  LEGALITY    OF    MEANS    USED  [CHAP.  IV 

"And  no  such  restraining  order  or  injunction  shall  prohibit  any 
person  or  persons  from  terminating  any  relation  of  employment,  or 
from  ceasing  to  perform  any  work  or  labor,  or  from  recommending, 
advising,  or  persuading  others  by  peaceful  means  so  to  do;  or  from 
attending  at  or  near  a  house  or  place  where  any  person  resides  or 
works,  or  carries  on  business,  or  happens  to  be  for  the  purpose  of 
peaceful^  obtaining  or  communicating  information,  or  of  peacefully 
persuading  any  person,  to  work  or  to  abstain  from  working;  or  from 
ceasing  to  patronize  or  to  employ  any  part}'  to  such  dispute;  or  from 
commending,  advising  or  persuading  others  by  peaceful  means  so 
to  do;  .  .  ." 

The  plaintiffs  alleged  that  this  paragraph  if  it  made  lawful  de- 
fendants' acts  contravened  the  Fourteenth  Amendment  to  the  Con- 
stitution of  the  United  States  by  depriving  plaintiffs  of  their  prop- 
erty without  due  process  of  law,  and  by  denying  to  plaintiffs  the 
equal  protection  of  the  laws,  and  was,  therefore,  void  and  of  no 
effect.  Upon  the  case  thus  stated  the  plaintiffs  asked  a  temporary, 
and  a  permanent  injunction. 

The  defendants  filed  a  demurrer,  on  two  grounds:  First,  that  the 
complaint  did  not  state  facts  sufficient  to  constitute  a  cause  of  action, 
in  that  the  property  rights  asserted  therein  were  not,  under  Para- 
graph 1464,  Revised  Statutes  of  Arizona,  1913,  of  such  character 
that  their  irreparable  injury  might  be  enjoined,  and  secondly,  that 
upon  its  face  the  complaint  showed  a  want  of  equity. 

The  Superior  Court  for  Cochise  County  sustained  the  demurrer 
and  dismissed  the  complaint,  and  this  judgment  was  affirmed  by 
the  Supreme  Court  of  Arizona.  .  .  . 

The  complaint  and  its  exhibits  make  this  case: 

The  defendants  conspired  to  injure  and  destroy  plaintiffs'  busi- 
ness by  inducing  his  theretofore  willing  patrons  and  his  would-be 
patrons  not  to  patronize  him  and  they  influenced  them  to  withdraw 
or  withhold  their  patronage. 
if''  (1)  By  having  the  agents  of  the  union  walk  forward  and  back 

-^  constantly  during  all  the  business  hours  in  front  of  plaintiffs'  res- 

*  tiiurant  and  within  five  feet  thereof,  displaying  a  banner  announc- 

.  ing  in  large  letters  that  the  restaurant  was  unfair  to  cooks  and  waiters 

^  and  their  union. 

(2)  By  having  agents  attend  at  or  near  the  entrance  of  the  res- 
taurant during  all  business  hours  and  continuously  announce  in  a 
loud  voice,  audible  for  a  great  distance,  that  the  restaurant  was 
unfair  to  the  labor  union. 

(3)  By  characterizing  the  employees  of  the  plaintiffs  as  scab 
Mexican  labor,  and  using  opprobrious  epithets  concerning  them  in 
handbills  (continuously  distributed  in  front  of  the  restaurant  to 
would-be  customers. 

(4)  By  applying  in  such  handbills  abusive  epithets  to  Truax,  the 
senior  memlier  of  plaintiffs'  firm,  and  making  libelous  charges  against 


•*^ 


SECT.  V]  PICKETING  223 

liini,  to  the  effoct  that  he  wa«  tyranniral  witli  his  help,  and  chawd 
them  (hnvn  th<!  street  with  a  butcher  knife,  tliat  he  l)r(jke  liis  eon- 
tract  and  repudiated  his  pledged  word;  that  lie  liad  made  attempts 
to  force  cooks  and  waiters  to  return  to  work  hy  attacks  on  men  and 
women;  that  a  friend  of  Truax  assaulted  a  woman  and  pleaded 
guilty;  that  plaintitT  was  known  by  his  friends,  and  that  Truax 's 
treatment  of  his  emijloyees  was  explained  by  his  friend's  assault; 
that  he  was  a  "bad  actor." 

(5)  By  seeking  to  disparage  plaintiffs'  restaurant  charging  that 
the  prices  wen;  higher  and  the  food  worse  than  in  any  other  res- 
taurant, and  tliat  assaults  and  slugging  were  a  regular  part  of  the 
bill  of  fare,  with  police  indilferent. 

(G)  By  attacking  the  character  of  those  who  did  patronize,  say- 
ing that  their  mental  calibre  and  moral  fibre  fell  far  below  the  Amer- 
ican average,  and  eiujuiring  of  the  would-be  j)atrons  —  Can  you 
patronize  such  a  place  and  look  the  world  in  the  face? 

(7)  By  threats  of  similar  injury  to  the  would-be  patrons  —  by 
such  expressions  as  "All  ye  who  enter  here  leave  all  hope  l>ehind." 
"Don't  be  a  traitor  to  humanity";  by  offering  a  reward  for  any 
of  the  ex-members  of  the  union  caught  eating  in  the  restaurant; 
by  siiying  in  the  handbills:  "We  are  also  aware  that  handbills  and 
banners  in  front  of  a  business  house  on  the  main  street  give  the 
town  a  bad  name,  but  they  are  permanent  institutions  until  William 
Truax  agrees  to  the  eight  hour  day." 

(S)  By  warning  any  person  wishing  to  jnirchase  the  busine.'is 
from  the  Truax  firm  that  a  donation  would  be  necessarj-,  amount 
to  be  fixed  by  the  District  Trades  Assembly  before  the  picketing 
and  boycotting  would  be  given  up. 

The  result  of  this  campaign  was  to  reduce  the  business  of  the 
plaintiffs  from  more  than  $55, 000  a  year  to  one  of  .S12,(XX).  .  .  . 
Thereal  (jucstion  here  is,  were  the  means  used  illegal?  The  above 
recital  oPwhat  the  defeTHtents'cTrd^'can  leave  no  doubt  of  that.  The- 
Ubelous  attacks  upon  the  plaintiffs,  their  business,  their  employees, 
and  their  customers,  and  the  abusive  epithets  applicil  to  them  were 
pali)al)lc  wrongs.  They  were  uttered  in  aid  of  the  i)lan  to  induce 
plaintiffs'  customers  and  would-be  customers  to  refrain  from  patron- 
izing the  plaintiffs.  The  patrolling  of  defendants  innnediately  in 
front  of  the  restaurant  on  the  main  street  and  within  five  feet  of 
plaintiffs'  premises  cont'nuously  during  business  hours,  with  the 
banners  announcing  plaintiffs'  unfairness;  the  attendance  by  the 
picketcrs  at  the  entrance  to  the  restaurant  and  their  insistent  and 
loud  appeals  all  day  long,  the  constant  circulation  by  them  of  the 
libels  and  epithets  applied  to  employees,  plaintitTs  and  customers, 
and  the  threats  of  injurious  conse(iuences  to  future  customers,  all 
linked  together  in  a  campaign  were  an  unlawful  uimo^'ance  anil  a 
hurtful  nuisance  in  respect  of  the  free  acce.«?s  to  the  plaintiffs  place 
of  busuiess.'  Tt  was  not  lawful  {XM-suasion  or  inducing.    It  was  not  a 


r 


/ 


I 


224  LEG-U.ITY   OF   MEANS   USED  [CHAP.  IV 

mere  appeal  to  the  sympathetic  aid  of  would-be  customers  by  a  simple 
statement  of  the  fact  of  the  strike  and  a  request  to  withhold  patron- 
age. It  was  compelhng  every  customer  or  would-be  customer  to 
run  the  gauntlet  of  most  uncomfortable  publicity,  aggressive  and 
annoying  importunity,  libelous  attacks  and  fear  of  injurious  con- 
sequences, illegally  inflicted,  to  his  reputation  and  standing  in  the 
community.  No  wonder  that  a  business  of  $50,000  was  reduced  to 
only  one-fourth  of  its  former  extent.  Violence  could  not  have  been 
more  effective.  It  was  moral  coercion  by  illegal  annoyance  and  ob- 
struction and  it  thus  was'pTainly  a  conspiracy.  .  .  . 

A  law  which  operates  to  make  lawful  such  a  wrong  as  is  described 
in  plaintiffs'  complaint  deprives  the  owner  of  the  business  and  the 
premises  of  his  property  without  due  process,  and  cannot  be  held 
valid  under  the  Fourteenth  Amendment.  .  .  . 

It  is  argued  that  while  the  right  to  conduct  a  lawful  business  is 
property,  the  conditions  surrounding  that  business,  such  as  regula- 
tions of  the  State  for  maintaining  peace,  good  order,  and  protection 
/  against  disorder,  are  matters  in  which  no  person  has  a  vested  right. 
/  The  conclusion  to  which  this  inevitably  leads  in  this  case  is  that  the 
I  State  may  withdraw  all  protection  to  a  property  right  by  civil  or 
/  criminal  action  for  its  wrongful  injury  if  the  injury  is  not  caused  by 
violence.  ...  It  is  true  that  no  one  has  a  vested  right  in  any  par- 
ticular rule  of  the  common  law,  but  it  is  also  true  that  the  legislative 
power  of  a  state  can  only  be  exerted  in  subordination  to  the  fun- 
damental principles  of  right  and  justice  which  the  guaranty  of  due 
process  in  the  Fourteenth  Amendment  is  intended  to  preserve,  and 
that  a  purely  arbitrary  or  capricious  exercise  of  that  power  whereby 
a  wrongful  and  highly  injurious  invasion  of  property  rights,  as  here, 
is  practically  sanctioned  and  the  owner  stripped  of  all  real  remedy, 
is  wholly  at  variance  with  those  principles. 

It  is  to  bo  observed  that  this  is  not  the  mere  case  of  a  peaceful 
.secondary  boycott  as  to  the  illegality  of  which  courts  have  differed 
and  states  have  adopted  different  statutory  provisions.  A  secondary 
boycott  of  this  kind  is  where  many  combine  to  injm*e  one  in  his 
business  by  coercing  third  persons  against  their  will  to  cease  patron- 
izing him  by  threats  of  similar  injury.  In  such  a  case  the  many  have 
a  legal  right  to  withdraw  their  trade  from  the  one,  they  have  the 
legal  right  to  withdraw  their  trade  from  third  persons,  and  they 
have  the  right  to  advise  third  persons  of  their  intention  to  do  so 
when  each  act  is  considered  singly.  The  question  in  such  cases  is 
whether  the  moral  coercion  exercised  over  a  stranger  to  the  original 
controversy  by  steps  in  themselves  legal  becomes  a  legal  wrong. 
But  here  the  illegality  of  the  means  used  is  without  doubt  and  fun- 
damental. The  moans  used  are  the  libelous  and  abusive  attacks  on 
the  plaintiffs'  reputation,  like  attacks  on  their  employees  and  cus- 
tomers, threats  of  such  attacks  on  would-be  customers,  picketing 
and  patrolling  of  the  entrance  to  their  place  of  business,  and  the 


SECT.  V]  PICKETING  225 

consequent  obstruction  of  fn'c  access  thereto  —  nil  with  the  pur- 
pose of  (icprivirifi;  the  phiiiilin's  (jf  their  business.  To  fiivc  o|j<'nition 
to  a  statute  wliereby  serious  losses  iuHicted  by  such  unlawful  means 
are  in  effect  made  remediless,  is,  we  think,  to  dLsregard  fundamental 
rights  of  liberty  and  [)roperty  and  t(i  dejjrive  the  [mtsou  suffering 
the  loss  of  due  process  of  law.   .   .   . 

'J'his  brings  us  to  consider  the  effect  in  this  ca.s<'  of  that  provision 
of  the  Fourteenth  Amendment  which  forbids  any  State  to  d-uv  to 
any  person  the  ecjual  protection  of  the  laws.  .  .  . 

It  is  Ix'side  the  point  to  .say  that  jjlaintiffs  had  no  vested  riulit 
in  e(}uity  relief  and  that  taking  it  away  does  not  deprive  them  of 
due  process  of  law.  If,  as  is  ass(!rted,  the  granting  of  equitable  rem- 
edies falls  within  the  police  power  and  is  a  matter  which  the  legis- 
lature may  vary  as  its  judgment  and  discretion  shall  dictate,  this 
does  not  meet  the  objection  under  the  ecjuality  clause  which  forbids 
the  granting  of  etpiitable  relief  to  one  man  and  the  denying  of  it  to 
another  under  like  circumstances  and  in  the  same  territorial  juris- 
diction. .  .  .  Here  is  a  direct  invasion  of  the  ordinary  business  and 
proix'rty  rights  of  a  person,  unlawful  when  committed  by  any  one, 
and  remediable  becau.se  of  itsotherwi.se  irreparable  character  by 
e(iuitarn«^)roiJ(^s7"excep^  Xh^ 

i^^^^~^^^on/^f  fHis  is  not  a  dematofthe  equal  protection  of  the 
laws,  then  it  is  hard  to  conceive  what  would  be.  .  .  . 

To  sustain  the  distinction  here  l^etween  the  ex-employees  and 
other  tort  feasors  in  the  matter  of  remedies  against  them,  it  is  cqn- 
tendeii  that  the  legislature  may  establish  a  class  of  such  ex-employees 
for  spccmT  legislative  treatment.  Tn  adjusting  legislation  to  the 
neecf  oftKe~people  of  a  state,  The  h^gislature  has  a  wide  discretion 
and  it  may  be  fully  concedeti  that  perfect  uniformity  of  treatment 
of  all  persons  is  neither  practical  nor  desirable,  that  classification  of 
persons  is  constantly  necessary  and  that  questions  of  proper  cla.ssi- 
fication  are  not  free  from  difficulty.  But  we  venture  to  think  that 
not  in  any  of  the  ca.ses  in  this  Court  has  cla.ssification  of  persons  of 
sound  mind  and  full  responsibility,  having  no  special  relation  to 
each  other,  in  respect  of  remedial  procedure  for  an  admitted  tort 
been  sustained.  Classification -nwat  be  reoGOtuible.  As  was  said  in 
C.ulf  Ry.  Co.  V.  Ellis,  105  U.  S.  155,  "Classification  must  always 
rest  upon  some  difference  wiiich  bears  a  rea.sonable  and  just  relation 
to  the  act  in  respect  to  whicii  the  classification  is  proposed  and  can 
never  l)e  made  arbitrarily  and  without  such  basis."  .  .  .  Clas.sifica- 
tion  like  the  one  with  wiiich  we  are  here  dealing  is  .said  to  \^o  the 
development  of  the  philosophic  tiiought  of  the  world  and  is  ojx*ning 
the  door  to  legalized  experiment.  When  fundamental  rights  ai-e  tluis 
attempted  to  be  taken  away,  however,  W(^  may  well  sul^ject  such 
experiment  to  attentive  judgment.  The  Constitution  was  intended, 
its  very  purpose  was,  to  pnn-ent  (experimentation  with  the  funda- 
mental   rights   of    the    individual.      We   said    through    Mr.   Justice 


226  LEGALITY   OF   MEANS   USED  [CHAP.  IV 

f   Brewer,  in  Muller  v.  Oregon,  208  U.  S.  412,  that  "it  is  the  peculiar 

(      value  of  a  written  constitution  that  it  places  in  unchanging  form 

limitations  upon  legislative   action,  and  thus  gives   a  permanence 

and   stability  to   popular  govermnent   which   otherwise   would   be 

^  lacking."  .   .   . 

Our  conclusion,  that  plaintiffs  are  denied  the  equal  protection  of 
the  laws,  is  sustained  by  the  decisions  in  this  court  in  Truax  v.  Raich, 
239  U.  S.  33;  Atchison  &  Santa  Fe  Ry.  v.  Vosburg,  238  U.  S.  56; 
Southern  Railway  Co.  v.  Greene,  216  U.  S.  400;  Connolly  v.  Union 
Sewer  Pipe  Co.,  184  U.  S.  540:  Cotting  v.  Kansas  City  Stock  Yards 
Co.,  183  U.  S.  79;  Gulf  Ry.  Co.  v.  Ellis,  165  U.  S.  150.  .  .  . 

It  is  urged  that  in  holding  Paragraph  1464  invalid,  we  are  in  effect 
holding  invalid  sec.  20  of  the  Clayton  Act.  Of  course,  we  are  not 
doing  so.  In  the  first  place,  the  equality  clause  of  the  Fourteenth 
Amendment  does  not  apply  to  congressional  but  only  to  state  ac- 
tion. In  the  second  place,  sec.  20  of  the  Clayton  Act  never  has  been 
construed  or  applied  as  the  Supreme  Court  of  Arizona  has  con- 
strued and  applied  Paragraph  1464  in  this  case. 

We  have  but  recently  considered  the  clauses  of  sec.  20  of  the  Clay- 
ton Act,  sometimes  erroneously  called  the  "picketing"  clauses. 
American  Steal  Foundries  v.  Tri-City  Trades  Council,  opinion  an- 
nounced December  5th.  They  forbid  an  injunction  in  labor  con- 
troversies "prohibiting  any  person  from  attending  at  any  place 
where  such  person  may  lawfully  be  for  the  purpose  of  peacefully 
obtaining  or  communicating  information,  or  from  peacefully  per- 
suading any  person  to  work  or  to  abstain  from  working;  or  from 
ceasing  to  patronize  or  to  employ  any  party  to  such  dispute  or  from 
recommending,  advising  or  persuading  others  by  peaceful  and  law- 
ful means  so  to  do." 

We  held  that  under  these  clauses  picketing  was  unlawful,  and 
that  it  might  be  enjoincd-aa^ch,  and  that  peaceful  picketing  was 
aT'contfadictfefTin  tems  whLcD^o^atuto  scnlulousl^^  avoidedT^But 
thatp^Tlt)ject  fb  the  p'rimary  right  f)f  the  ('iiii)Ioyer  anTrtrts-cm^Ioyees 
and  would-be  employees  to  free  access  to  his  premises  without 
obstruction  by  violence,  intimidation,  annoyance,  importunity  or 
dogging,  it  was  lawful  for  ex-employees  on  a  strike  and  their  fellows 
in  a  labor  union  to  have  a  single  representative  at  each  entrance 
to  the  plant  of  the  employer  to  announce  the  strike  and  peaceably 
to  persuade  the  employees  and  would-be  employees  to  join  them 
in  it.  \Vehejd  that-ihcgo_claiises  were  merely  declaratory  of  what 
haxl.j^^vj]iyfr4^cqnm    law jndjjjej^(^  jLmgtjce^^  ;ind  we  ^\n\f 

(U)plied  them,  fhe  cohstruction  pift  upon  the  same  woTcIs  by  the 
ArizonaSTlpremc;  Court  makes  these  clauses  of  Paragraph  1464  as 
far  from  thos(>  of  sec.  20  of  the  Clayton  Act  in  meaning  as  if  they 
were  in  wholly  different  language. 

We  conclude  that  the  demurrer  in  this  case  should  have  been 
overruled,  the  defendants  recjuired  to  answer,  and  that  if  the  evi- 


I 


SECT.   V]  PICKETING  227 

dence  sustain  the  avorments  of  the  complaint,  an  injunction  should 
issue  as  prayed.  .  .  . 

The  judgment  of  the  Supreme  Court  of  Arizona  is  reversed  and  the 
case  remanded  for  further  proceedings  not  inconsistent  unth  this 
opinion. 

Mr.  Justice  Holmes,  dissontinfj;.  ...  I  cannot  undorstiind  the 
notion  that  it  would  he  uncou.stitutional  to  authorize  boycotts  and 
the  like  in  aid  of  the  einployee.s'  or  the  employers'  inl<-rest  by  statute? 
when  the  same  result  has  Ix'cn  reached  constitutionally  without 
statute  by  Courts  with  whom  I  asree.  Sec  The  HamilUjn,  207  V.  S. 
398,  404.  In  this  ca.se  it  does  not  even  appear  that  the  basincss  wa.s 
not  created  under  the  laws  as  they  now  are.  Denny  r.  Bennett,  Ti-S 
U.  S.  4S9. 

I  think  further  that  the  .selection  of  the  chuss  of  em[)loyers  and 
employees  for  special  treatment,  dealing  with  both  sides  alike,  is 
beyond  criticism  on  princinles  often  a.sserted  by  this  Court.  And 
especially  I  think  that  without  le^aliziii^;  the  contluct  com{)laine(l 
of  the  extraordinary  reli(>f  by  injunction  may  be  tlenied  to  the  clas.-<. 
Legislation  may  begin  where  an  evil  begins.  If,  as  many  intelligent 
people  believe,  there  is  more  danger  that  the  injunction  will  l>e 
abu.^ed  in  labor  cases  than  elsewhere  I  can  feel  no  doubt  of  the  j)Ower 
of  the  legislature  to  deny  it  in  such  ca,ses.  .   .   . 

I  must  add  one  general  consideration.  There  is  nothing  that  I 
more  deprecate  than  the  use  of  the  Fourteenth  Amendment  lx?yond 
the  al).s()lutc  compulsion  of  its  words  to  prevent  the  making  of  social 
experiments  that  an  important  part  of  the  comnumity  desires,  in 
the  insulated  chambers  alTordod  by  the  .several  States,  even  though 
the  experiments  may  seem  futile  or  even  noxious  to  me  and  to  those 
whose  judgment  I  most  respect.  I  agree  with  the  more  elaborate 
expositions  of  m>'  l)rotheis  Pitney  and  Brandeis  and  in  their  con- 
clusion that  the  judgment  sliould  t)e  aflirmed. 

Mr.  Justice  Brandeis,  dissenting.'  The  first  legislature  of  the 
State  of  Arizona  adopted  in  1913  a  civil  coilc  By  Title  6,  Chapter  III 
it  .sets  forth  conditions  and  circumstances  under  which  the  courts 
of  the  State  may  or  may  not  grant  injunctions.  Paragraph  14()4 
contains,  among  other  things,  a  prohil)ition  against  interfering  by 
injunction  l)etwecn  employers  and  employees,  in  any  case  growing 
out  of  a  dispute  concerning  terms  or  conditions  of  employment, 
unless  interposition  by  injunction  is  necessary'  to  protect  property 
from  injury  through  violence.  Its  main  purpose  was  doubtless  to 
prohilMt  the  courts  from  enjoining  ii<\iceful  picketing  and  the  boy- 
cott. With  the  wisdom  of  the  statute  we  have  no  concern.  Whetlier 
Arizona  in  enacting  this  statute  tran.sgre.ssed   limitations   im|X)sed 

'  Owing  to  lack  of  space,  the  valuable  footnotes  in  the  opinion  of  Mr.  Ju.«itioc 
Brandeis  unfortunatelv  have  had  to  l)0  omitted.  —  Ki). 


228  LEGALITY  OF  MEANS  USED         [CHAP.  IV 

upon  the  power  of  the  States  by  the  Fourteenth  Amendment  is  the 
question  presented  for  decision. 

The  employer  has,  of  course,  a  legal  right  to  carry  on  his  business 
for  profit;  and  incidentally  the  subsidiary  rights  to  secure  and  re- 
tain customers,  to  fix  such  prices  for  his  product  as  he  deems  proper, 
and  to  buy  merchandise  and  labor  at  such  prices  as  he  chooses  to 
pay.  This  right  to  carry  on  business  —  be  it  called  liberty  or  prop- 
erty—  has  value;  and,  he  who  interferes  with  the  right  without 
cause  renders  himself  liable.  But  for  cause  the  right  may  be  inter- 
fered with  and  even  be  destroyed.  Such  cause  exists  when,  in  the 
pursuit  of  an  equal  right  to  further  their  several  interests,  his  com- 
petitors make  inroads  upon  his  trade,  or  when  suppliers  of  merchan- 
dise or  of  labor  make  inroads  upon  his  profits.  What  methods  and 
means  are  permissible  in  this  struggle  of  contending  forces  is  deter- 
mined in  part  by  decisions  of  the  courts,  in  part  by  acts  of  the  legis- 
latures. The  rules  governing  the  contest  necessarily  change  from 
time  to  time.  For  conditions  change;  and,  furthermore,  the  rules 
evolved,  being  merely  experiments  in  government,  must  be  discarded 
when  they  prove  to  be  failures. 

Practically  every  change  in  the  law  governing  the  relation  of  em- 
ployer and  employee  must  abridge,  in  some  respect,  the  liberty  or 
property  of  one  of  the  parties  —  if  liberty  and  property  be  meas- 
ured by  the  standard  of  the  law  theretofore  prevailing.  If  such 
changes  are  made  by  acts  of  the  legislature,  we  call  the  modification 
an  exercise  of  the  police  power.  And,  although  the  change  may 
involve  interference  with  existing  liberty  or  property  of  individuals, 
the  statute  will  not  be  declared  a  violation  of  the  due  process  clause, 
unless  the  court  finds  that  the  interference  is  arbitrary  or  unreason- 
able or  that,  considered  as  a  means,  the  measure  has  no  real  or  sub- 
stantial relation  of  cause  to  a  permissible  end.  Nor  will  such  changes 
in  the  law  governing  contests  between  employer  and  employee  be 
held  to  be  violative  of  the  equal  protection  clause,  merely  because 
the  liberty  or  property  of  individuals  in  other  relations  to  each 
other  (for  instance,  as  competitors  in  trade  or  as  vendor  and  pur- 
chaser) would  not,  under  similar  circumstances,  be  subject  to  like 
abridgment.  Few  laws  are  of  universal  application.  It  is  of  the 
nature  of  our  law  that  it  has  dealt  not  with  man  in  general,  but  with 
him  in  relationships.  That  a  peculiar  relationship  of  individuals 
may  furnish  legal  basis  for  the  classification  which  satisfies  the  re- 
quirement of  the  Fourteenth  Amendment  is  clear.  That  the  relation 
of  employer  and  employee  affords  a  constitutional  basis  for  legisla- 
tion applicable  only  to  persons  standing  in  that  relation  has  been 
repeatedly  held  by  this  Court.  The  cpiestions  submitted  are  whether 
this  statutory  prohibition  of  the  remedy  by  injunction  is  in  itself 
arbitrary  and  so  unreasonable  as  to  deprive  the  employer  of  liberty 
or  property  without  due  process  of  law;  —  and  whether  limitation  of 


SECT.  V]  PICKETING  229 

this  i)rohil)ition  to  controvcrsios  involving  omplo^Tnent  denies  hira 
(H\uii\  protection  of  the  hiws. 

Whether  a  law  enacted  in  the  exercise  of  the  i)olice  power  is  justly 
subject  to  the  charge  of  Ix'ing  unreasonable  or  arbitrary,  can  ordi- 
narily be  deternuried  only  l)y  a  cJinsidcration  (jf  the  conteni|>orary 
conditions,  social,  industrial  and  political,  of  the  conununity  to  \)e 
aflfected  thereby.  Resort  to  such  facts  is  nece.s.sary,  among  other 
things,  in  order  to  appreciate  the  evils  sought  to  Ix*  remedied  and 
the  po.ssible  effects  of  the  remedy  propo.sed.  Nearly  all  legislation 
involves  a  weighing  of  public  needs  lus  against  private  desires; 
and  likewise  a  weighing  of  relative  social  values.  Since  government 
is  not  an  exact  science,  prevailing  public  opinion  concerning  the 
evils  and  the  remedy  is  among  the  important  facts  deserving  con- 
sideration; particularly,  when  the  public  conviction  is  both  deep- 
seated  and  widespread  and  hixs  been  reached  after  deliberation. 
What,  at  any  particular  tim(\  is  the  paramount  public  need  is,  neces- 
sarily, largely  a  matter  of  judgment.  Hence,  in  passing  upon  the 
validity  of  a  law  challenged  as  being  um'easonable,  aid  may  Ix?  de- 
lived  from  the  experience  of  other  countries  and  of  the  .several  States 
of  our  Union  in  which  the  common  law  and  its  conceptions  of  lilx?rty 
and  of  property  prevail.  The  history  of  the  rules  governing  contests 
between  employer  and  employed  in  the  several  p]nglish-speaking 
countries  illustrates  both  the  su.sceptibility  of  such  rules  to  change 
and  the  variety  of  contemporary  oi)inion  as  to  what  rules  will  be.st 
serve  the  public  interest.  The  divergence  of  opinion  in  this  difficult 
field  of  governmental  action  should  admonish  us  not  to  declare  a 
rule  arbitrary  and  unreasonai)l(^  merely  because  we  are  convinced 
that  it  is  fraugiit  with  duiger  to  the  pui)lic  weal,  and  thus  to  dosft 
the  door  to  experiment  within  the  l:iw. 

In  l']ngland  a  workingman  struggling  to  improve  his  condition, 
even  when  acting  singly,  was  confronted  until  1813  with  laws  limit- 
ing the  amou:it  of  wages  which  he  might  demand.  Until  1824  he 
was  punishal)le  as  a  criminal  if  he  coml)ine{l  with  his  fellow  work- 
men to  raise  wages  or  shorten  hours  or  to  affect  the  business  in  any 
way,  even  if  there  was  no  resort  to  a  strike.  Until  1871  meml^ers 
of  a  union  who  joined  in  persuading  employees  to  leave  work  were 
liable  criminally,  although  the  employees  were  not  under  contract 
and  the  persuasion  was  both  peaceful  and  unattend(>d  l)y  picketing. 
Until  1871  threatening  a  strike,  whatever  the  cause,  was  also  a 
criminal  act.  Not  until  1875  vvius  the  rigiit  of  workers  to  combine 
in  order  to  attain  their  ends  conceded  fully.  In  that  year  Parlia- 
ment declared  that  workmiMi  c()ml)ining  in  furtiierance  of  a  trade 
dispute  should  not  be  indictable  for  criminal  conspiracy  unless  the 
act  if  done  by  one  person  would  be  indictable  as  a  crime.  After  that 
statute  a  combination  of  workmen  to  effect  the  ordinary  objects  of 
a  strike  was  no  longer  a  criminal  offense.    But  picketing,  though 


230  LEGALITY   OF   MEANS   USED  [CHAP.  IV 

peaceful,  in  aid  of  a  strike,  remained  illegal;  and  likewise  the  boy- 
cott. Not  until  1906  was  the  ban  on  peaceful  picketing  and  the 
bringing  of  pressure  upon  an  employer  by  means  of  a  secondary 
strike  or  a  boj^cott  removed.  In  1906,  also,  the  act  of  inducing  work- 
ers to  break  their  contract  of  employment  (previously  held  an  ac- 
tionable wrong)  was  expressly  declared  legal.  In  England  improve- 
ment of  the  condition  of  workingmen  and  their  emancipation  appear 
to  have  been  deemed  recently  the  paramount  public  need. 

In  the  British  Dominions  the  rules  governing  the  struggle  between 
employer  and  employed  were  likewise  subjected  to  many  modifica- 
tions; but  the  trend  of  social  experiment  took  a  direction  very  differ- 
ent from  that  followed  in  the  mother  countr}-.  Instead  of  enabling 
the  worker  to  pursue  such  methods  as  he  might  deem  effective  in 
the  contest,  statutes  were  enacted  in  some  of  the  Dominions  which 
forbade  the  boycott,  peaceful  picketing,  and  even  the  simple  strike 
and  the  lockout;  use  of  the  injunction  to  enforce  compliance  with 
these  prohibitions  was  expressly  sanctioned;  and  violation  of  the 
statute  was  also  made  punishable  by  criminal  proceedings.  These 
prohibitions  were  the  concomitants  of  prescribed  industrial  arbitra- 
tion through  administrative  tribunals  by  which  the  right  of  both 
employer  and  employee  to  liberty  and  property  were  seriously 
abridged  in  the  public  interest.  Australia  and  New  Zealand  made 
compulsory  both  arbitration  and  compliance  with  the  award.  Can- 
ada limited  the  compulsion  to  a  postponement  of  the  right  to  strike 
until  the  dispute  should  have  been  officially  investigated  and  re- 
ported upon.  In  these  Dominions  the  uninterrupted  pursuit  of  in- 
dustry and  the  prevention  of  the  arbitrary  use  of  power  appear  to 
be  deemed  the  paramount  public  needs. 

In  the  United  States  the  rules  of  the  common  law  governing  the 
struggle  between  employer  and  employee  have  likewise  been  sub- 
jected to  modifications.  These  have  been  made  mainly  through 
judicial  decisions.  The  legal  right  of  workingmen  to  combine  and 
to  strike  in  order  to  secure  for  themselves  higher  wages,  shorter 
hours  and  better  working  conditions  received  early  general  recog- 
nition. But  there  developed  great  diversity  of  opinion  as  to  the  means 
by  which,  and  also  as  to  the  persons  through  whom,  and  upon  whom 
pressure  might  permissibly  be  exerted  in  order  to  induce  the  em- 
ployer to  yiekl  to  the  demands  of  the  workingmen.  Courts  were 
required,  in  the  absence  of  legislation,  to  determine  what  the  pul)lic 
welfare  demanded ;  —  whether  it  would  not  be  best  subserved  by 
leaving  the  contestants  free  to  resort  to  any  means  not  involving  a 
breach  of  the  peace  or  injury  to  tangil)le  proj)erty;  whether  it  was 
consistent  with  the  pubHc  interest  that  the  contestants  should  be 
permitted  to  invoke  the  aid  of  others  not  directly  interested  in  the 
matter  in  controversy;  and  to  what  extent  incidental  injury  to  per- 
sons not  parties  to  the  controversy  should  be  held  justifiable. 


SECT.  V]  PICKETING  231 

The  earliest  reported  Aincricjiii  decision  on  p<'accful  picketing 
appears  to  have  been  rendered  in  18H8;'  the  earhest  on  Ixjyeotting 
in  1886.2  By  no  great  majority  the  prevaihng  judicial  opinion  in 
America  declares  the  boycott  as  commonly  jjracticed  an  illegal 
means  (see  I)ui)lex  Printing  Press  Co.  v.  Deering,  2.>i  l'.  S.  413), 
vvliile  it  inclines  towards  tiie  legality  of  {x-acefnl  picketing.  S<'e  Amer- 
ican Steel  Foundries  v.  Tri-City  Central  Trades  (.'ouncil,  257  l'.  S. 
— .  But  in  some  of  the  States,  notably  New  York,  both  peaceful 
picketing  and  the  boycott  are  declared  permissible.  Judges,  Ix-ing 
thus  called  upow  to  e.xerci.se  a  (juasi-legislative  function  and  weigh 
relative  .social  values,  naturally  dilTered  in  their  conclusirnis  on  such 
questions. 

In  England,  observance  of  the  rules  of  the  contest  has  Ix'en  en- 
forced by  the  courts  almost  wholly  through  the  criminal  law  or 
througli  actions  at  law  for  compensation.  An  injunction  wa.s  granted 
in  a  labor  dispute  as  early  as  1868.'  But  in  lOngland  resort  to  the 
injunction  has  not  been  frequent  and  it  has  played  no  appreciable 
part  there  in  the  conflict  between  capital  and  labor.  In  America 
the  injunction  did  not  secure  recognition  as  a  possible  remedy  until 
1888.*  When  a  few  years  later  its  use  became  extensive  and  con- 
spicuous, the  controv^ersy  over  the  remedy  overshadowed  in  bitter- 
ness the  question  of  the  relative  substantive  rights  of  the  parties. 
In  the  storms  of  protest  against  this  use  many  thoughtful  lawyers 
joined.  The  equitable  remedy,  although  applied  in  accordance  with 
estai)lished  practice,  involved  incidents  which,  it  was  asserted,  en- 
dangered the  personal  liberty  of  wage-earners.  The  acts  enjoined 
were  frequently,  perhaps  usually,  acts  which  were  already  crimes  at 
common  law  or  had  been  made  so  i\v  statutes.  Tlie  issues  in  litiga- 
tion arising  out  of  trade  disputes  relate  1  largely  to  cjuestions  of  fact. 
But  in  equity  issues  of  fact  as  of  law  were  tried  by  a  single  judge, 
sitting  without  a  jury.  Charges  of  violating  an  injunction  were  often 
heart!  on  affidavits  merely,  without  the  opportunity  of  confronting 
or  cro.ss-examining  witnesses.  Men  found  guilty  of  contempt  were 
committed  in  tlie  judge's  discretion,  without  either  a  statutory  limit 
upon  the  length  of  the  imprison-nent,  or  the  opportunity  of  effective 
review  on  appeal,  or  the  right  to  release  on  bail  pending  po.ssible  n^- 
visory  procecnlings.  The  cfTtH't  of  the  proceeding  upon  the  individ- 
ual was  substantially  the  same  as  if  he  had  been  successfully  pro.se- 
cuted  for  a  crime;    but  he  was  denied,  in  the  course  of  the  etjuity 

'  Sherrv'  r.  Perkin.««,  147  Ma.«w.  212:  hut  the  doctrine  was  not  estahh.shed  until 
eipht  years  later,  Vepclahn  v.  fluritner,  Ku  Mass.  02. 

-  The  earliest  reported  cases  .spcin  to  he  People  c.  Wilzi^;.  4  N.  V.  Criin.  40.3; 
and  People  v.  Kostka,  4  \.  V.  Trim.  420.  hoth  of  which  occurred  in  June,  ISSt); 
the  leading  ca.se  of  State  v.  Clidden,  .5.')  Conn.  4t),  came  the  next  year. 

'  Sprinjihead  Spinninc  Co.  i'   Riley,  L.  R.  (>  E.  .'i.'il. 

*  The  earlie.st  case  of  importance  w.-is  Sherr>-  i-.  Perkins,  147  Mass.  212  flSSS). 
But  injunctions  were  granted  four  or  five  years  earlier.  Commons,  Histor>'  of 
Labor  in  the  United  States,  vol.  2,  p.  504. 


232  LEGALITY   OF   MEANS   USED  [CHAP.  IV 

proceedings,  those  rights  which  by  the  Constitution  are  commonly 
secured  to  persons  charged  with  a  crime. 

It  was  asserted  that  in  these  proceedings  an  alleged  danger  to 
property,  always  incidental  and  at  times  insignificant,  was  often 
laid  hold  of  to  enable  the  penalties  of  the  criminal  law  to  be  en- 
forced expeditiously  without  that  protection  to  the  liberty  of  the 
individual  which  the  Bill  of  Rights  was  designed  to  afford;  that 
through  such  proceedings  a  single  judge  often  usurped  the  functions 
not  only  of  the  jury  but  of  the  police  department;  that  in  prescrib- 
ing the  conditions  under  which  strikes  were  permissible  and  how 
they  might  be  carried  out,  he  usurped  also  the  powers  of  the  legisla- 
ture; and  that  incidentally  he  abridged  the  constitutional  rights  of 
individuals  to  free  speech,  to  a  free  press  and  to  peaceful  assembly. 

It  was  urged  that  the  real  motive  in  seeking  the  injunction  was 
not  ordinarily  to  prevent  property  from  being  injured  nor  to  protect 
the  owner  in  its  use,  but  to  endow  property  with  active,  militant 
power  which  would  make  it  dominant  over  men.  In  other  words, 
that  under  the  guise  of  protecting  property  rights,  the  employer 
was  seeking  sovereign  power.  And  many  disinterested  men,  solicitous 
only  for  the  public  welfare,  believed  that  the  law  of  property  was  not 
appropriate  for  dealing  with  the  forces  beneath  social  unrest;  that 
in  this  vast  struggle  it  was  unwise  to  throw  the  power  of  the  State 
on  one  side  or  the  other  according  to  principles  deduced  from  that 
law;  that  the  problem  of  the  control  and  conduct  of  industry  de- 
manded a  solution  of  its  own;  and  that  pending  the  ascertainment 
of  new  principles  to  govern  industry,  it  was  wiser  for  the  State  not 
to  interfere  in  industrial  struggles  by  the  issuance  of  an  injunction. 

After  the  constitutionality  and  the  propriety  of  the  use  of  the  in- 
junction in  labor  disputes  was  established  judicially,  those  who 
opposed  the  practice  sought  the  aid  of  Congress  and  of  state  legisla- 
tures. The  bills  introduced  varied  in  character  and  in  scope.  Many 
dealt  merely  with  rights;  and,  of  these,  some  declared,  in  effect, 
that  no  act  done  in  furtherance  of  a  labor  dispute  by  a  combination 
of  workingmcn  should  be  held  illegal,  unless  it  would  have  been  so, 
if  done  by  a  single  individual;  while  others  purported  to  legalize 
specific  practices,  like  boycotting  or  picketing.  Other  bills  dealt 
merely  with  the  remedy;  and  of  these,  some  undertook  practically 
to  abolish  the  use  of  the  injunction  in  labor  disputes,  while  some 
merely  limited  its  use  either  l)y  prohibiting  its  issue  under  certain 
conditions  or  by  denying  power  to  restrain  certain  acts.  Some  bills 
undertook  to  modify  both  rights  and  remedies.  These  legislative 
proposals  occupied  the  attention  of  Congress  during  every  session 
but  one  in  the  twenty  years  between  1894  and  1914.  Reports  recom- 
mending such  legislation  were  repeat(Mily  made  l\y  the  Judiciary 
Committee  of  the  House  or  that  of  the  Senate;  and  at  some  ses- 
sions by  both.  Prior  to  1914,  legislation  of  this  character  had  at 
several  sessions  passed  the  House;  and  in  that  year  Congress  passed 


SECT.  V]  PICKETING  233 

and  the  President  uppn^vcd  the  f'layton  Act,  sec.  20  of  wliich  is 
substantially  the  same  as  ParaKrai)h  14G4  of  the  Arizona  Civil  Cod**, 
Act  of  October  15,  1914,  c.  323,  3S  Stat.  730,  73S. 

Such  was  the  diversity  of  view  concerning  peaceful  picketing  and 
th(,'  boycott  expressed  in  judicial  decisicjns  and  leni.slation  in  I'jinlish- 
speaking  countries  when  in  l\)[',i  the  new  State  of  Arizona,  in  estab- 
lishing its  judicial  .system,  limited  the  use  of  tlie  injunction  and 
when  in  19 IS  its  Supreme;  ('ourt  was  called  ujxjn  to  declare  for  the 
first  time  tlie  law  of  .\rizona  on  these  subjects.  The  c:use  of  Truax 
V.  Bisbee  Local  No.  3S0,  19  .Vriz.  379,  presented  facts  iflentical  with 
tlio.se  of  the  case  at  bar.  In  that  case  tlie  Supreme  Court  made  its 
decision  on  four  controverted  points  of  law.  In  the  first  place,  it 
held  that  the  yfhcials  of  the  union  were  not  (jutsiders  with  no  justi- 
fication for  tiieir  acts  (19  Ariz.  ;i7!),  390J.  In  the  second  place,  re- 
jecting the  view  held  by  the  federal  courts  and  the  majority  of  th(? 
state  courts  on  the  illegality  of  the  boycott,  it  specifically  accejited 
the  law  of  New  York,  Montana  and  Cahfornia,  citing  the  decisions 
of  those  Stat(>s  (19  Ariz.  379,  3H,S,  390).  In  the  third  place  it  re- 
jected the  law  of  New  .ler.sey,  Minnesota  and  Pennsylvania  that  it  is 
illegal  to  circularize  an  employer's  customers,  and  again  adopte(l  the 
rule  declared  in  the  decisions  of  the  courts  of  New  York,  Montana, 
California  and  Connecticut  (19  Ariz.  379,  389).  In  deciding  the.se 
three  points  the  Supreme  Court  of  Arizona  made  a  choice  lx'twe<'n 
well-established  precetlents  laitl  down  on  either  side  by  .some  of  the 
strongest  courts  in  the  country.  Can  this  Court  say  that  thereby  it 
deprived  the  plaintiff  of  his  property  without  due  process  of  law? 

The  fourth  (juestion  recpiiring  decision  was  whether  peacefid 
picketing  should  be  deemed  legal.  Here,  too,  each  of  the  opposing 
views  had  the  support  of  decisions  of  strong  courts.  If  the  Arizona 
Court  had  decided  that  by  the  common  law  of  the  State  the  defend- 
ants might  peacefully  picket  the  plaintitT,  its  decision,  like  those  of 
the  courts  of  Oiiio,  MiniKvsota,  Montana,  New  York,  Oklahoma 
and  New  Hampshire,  would  surely  not  have  been  open  to  objection 
under  the  Federal  C'onstitution;  for  this  Court  has  recently  held 
that  peaceful  picketing  is  not  unlawful.  American  Steel  Foundries 
V.  Tri-City  C(Mitral  Trades  Council,  S}ipra.  The  Supreme  Court  of 
Arizona  found  it  unnecessary  to  tletermine  what  was  the  common 
law  of  the  State  on  that  subject,  because  it  construed  Paragraph 
1464  of  the  Civil  Code  as  declaring  peaceful  picketing  to  Ix^  legal. 
In  the  case  at  bar,  commenting  on  the  earlier  ca.se,  the  Court  i^aid: 
"The  statute  adopts  the  view  of  a  numlxM-  of  courts  which  have  held 
picketing,  if  peaceably  carried  on  for  a  lawful  i)urpos(\  to  l)e  no 
violation  of  any  legal  right  of  the  party  whose  place  of  busine.ss  is 
picketed,  and  whether  as  a  fact  the  picketing  is  carried  on  by  p<\ice- 
ful  mc^ans,  as  against  the  other  view  taken  by  the  federal  courts 
and  many  of  the  state  courts  that  picketing  is  per  sr  unlawful." 
Shortly  before  that  decision  the  Criminal  Court  of  Apjx^als  of  Okla- 


234  LEGALITY   OF   MEANS   USED  [CHAP.  IV 

homa  had  placed  a  similar  construction  upon  a  statute  of  that  State, 
declaring  that  "the  doctrine  (that  picketing  is  not  per  se  unlawful) 
represents  the  trend  of  legal  thought  of  modern  times,  and  is  specifi- 
cally reflected  in  the  statute  above  construed."  Ex  parte  Sweitzer, 
13  Okl.  Cr.  154,  160.  See  St.  Louis  v.  Gloner,  210  Mo.  502.  A  State, 
which  despite  the  Fourteenth  Amendment  possesses  the  power  to 
impose  on  employers  without  fault  unlimited  liability  for  injuries 
suffered  by  emplo3^ees,^  and  to  limit  the  freedom  of  contract  of  some 
employers  and  not  of  others,^  surely  does  not  lack  the  power  to  select 
for  its  citizens  that  one  of  conflicting  views  on  boycott  by  peaceful 
picketing  which  its  legislature  and  highest  court  consider  will  best 
meet  its  conditions  and  secure  the  public  welfare. 

The  Supreme  Court  of  Arizona,  having  held  as  a  rule  of  substan- 
tive law  that  the  boycott  as  here  practiced  was  legal  at  common 
law;  and  that  the  picketing  was  peaceful,  and  hence,  legal  under 
the  statute  (whether  or  not  it  was  legal  at  common  law),  necessarily 
denied  the  injunction,  since,  in  its  opinion,  the  defendants  had  com- 
mitted no  legal  wrong  and  were  threatening  none.  But  even  if  this 
Court  should  hold  that  an  employer  has  a  constitutional  right  to  be 
free  from  interference  by  such  a  boycott  or  that  the  picketing  prac- 
ticed was  not  in  fact  peaceful,  it  does  not  follow  that  Arizona  would 
lack  the  power  to  refuse  to  protect  that  right  by  injunction.  For  it 
is  clear  that  the  refusal  of  an  equitable  remedy  for  a  tort  is  not  neces- 
sarily a  denial  of  due  process  of  law.  And  it  seems  to  be  equally 
clear  that  such  refusal  is  not  necessarily  arbitrary  and  unreasonable 
when  applied  to  incidents  of  the  relation  of  employer  and  employee. 
The  considerations  which  show  that  the  refusal  is  not  arbitrary  or 
unreasonable  show  likewise  that  such  refusal  does  not  necessarily 
constitute  a  denial  of  equal  protection  of  the  laws  merely  because 
some,  or  even  the  same,  property  rights  which  are  excluded  by  this 
statute  from  protection  by  injunction,  receive  such  protection  under 
other  circumstances,  or  between  persons  standing  in  different  re- 
lations. The  acknowledged  legislative  discretion  exerted  in  classi- 
fication, so  frequently  applied  in  defining  rights,  extends  equally  to 
the  grant  of  remedies.  It  is  for  the  legislature  to  say  —  within  the 
broad  limits  of  the  discretion  which  it  possesses  —  whether  or  not 
the  remedy  for  a  wrong  shall  be  both  criminal  and  civil  and  whether 
or  not  it  shall  be  both  at  law  and  in  equity. 

A  state  is  free  since  the  adoption  of  the  Fourteenth  Amendment, 
as  it  was  before,  not  only  to  determine  what  systcMu  of  law  shall 
prevail  in  it,  but,  also,  by  what  processes  legal  rights  may  be  as- 
serted, and  in  what  courts  they  may  be  enforced.  Missouri  v.  Lewis, 
101  U.  S.  22,  31;  Iowa  Central  Railway  Co.  v.  Iowa,  160  U.  S.  389. 
As  a  state  may  adopt  or  reject  trial  by  jury.  Walker  v.  Sauvinet, 
92  U.  S.  90;   or  adopting  it  may  retain  or  discard  its  customary  in- 

1  Arizona  Employera  Liability  Cases,  250  U.  S.  400. 

2  Dominion  Hotel  v.  Arizona,  249  U.  S.  265. 


1 


SECT.  V]  PICKE.TrNG  235 

cidents,  Hayes  v.  Missouri,  120  W  S.  68;  Brown  v.  New  Jersey,  175 
U.  S.  172;  Maxwell  v.  Dow,  170  U.  S.  581;  as  a  state  may  grant  or 
withhold  review  of  a  decision  by  appeal,  Heetz  v.  MieliiKan,  ISS 
U.  S.  505;  so  it  may  determine  for  itself,  from  time  to  time,  whether 
the  protection  whicli  it  iilTords  to  property  riM;hts  through  its  (-(jurts 
shall  be  {^iven  by  means  of  the  preventive  remedy  or  exchi.sivel}-  by 
an  action  at  law  for  compensation. 

Nor  is  a  state  oblij^ed  to  protect  all  property  rights  by  injunction 
merely  because  it  pnjtects  some,  even  if  the  atteudinf^  circumstances 
are  in  some  respects  similar.  The  restrainiiin  power  of  ecjuity  might 
conceival)ly  be  aj)plied  to  every  intended  violation  of  a  legal  right. 
On  grounds  of  expediency  its  application  is  conunonly  denied  in 
cases  where  there  is  a  remedy  at  law  wiiich  is  decme(i  legally  adefjuate. 
But  an  injunction  has  been  denied  on  grounds  of  expediency,  in  man}' 
cases  where  the  remedy  at  law  is  confessedly  not  a(le(|uate.  This 
occurs  whenever  a  dominant  public  interest  is  deemed  to  require 
that  the  preventive  remctly,  otherwise  available  for  the  protection 
of  private  rights,  be  refused  and  the  injured  party  left  to  such  remedy 
as  courts  of  law  may  afford.  Thus,  courts  ordinarily  refuse,  jx-r- 
haps  in  the  interest  of  free  speech,  to  restrain  actionable  libels.  Bos- 
ton Diatite  Co.  /'.  Florence  Mfg.  Co.,  114  Mass.  69;  Prudential 
Insurance  Co.  v.  Knott,  L.  R.  10  Ch.  App.  142.  In  the  interest  of 
personal  liberty  they  ordinarily  refuse  to  enforc(>  specifically,  by 
mandatory  injunction  or  otherwise,  obligations  involving  personal 
service.  Arthur  v.  Oakes,  63  Fed.  310,  318;  Davis  v.  Foreman, 
1894,  3  Ch.  654,  657;  Oossard  v.  Crosby,  132  Iowa,  155,  103,  104. 
In  the  desire  to  preserve  the  separation  of  governmental  powers 
they  have  declined  to  protect  by  injunction  mere  political  rigiits, 
Giles  V.  Harris,  189  U.  S.  475;  and  have  refused  to  interfere  with 
the  operations  of  the  police  department.  Davis  v.  American  Society 
for  the  Prevention  of  Cruelty  to  Animals,  75  N.  Y.  302;  Delan(>y 
V.  Flood,  1S3  X.  Y.  323;  comjian^  BislxM^  v.  Arizona  Insurance  Agencv, 
14  Ariz.  313.  ... 

Such  limitations  upon  the  u.se  of  the  injunction  for  the  protection 
of  private  rights  have  ordinarily  been  imposed  in  the  interest  of  the 
public  by  the  court  acting  in  the  exercise  of  its  broad  discretion.  But, 
in  some  instances,  the  denial  of  the  preventive  remedy  because  of  a 
pul)lic  interest  deemed  paramount,  has  been  expressly  connnanded 
by  statute.  Thus,  the  courts  of  the  United  States  have  been  pro- 
hibited from  staying  proceedings  in  any  court  of  a  state,  Judicial 
Code,  sec.  2{)r)\  and  also  from  enjoining  th(^  illegal  a.ssessment  and 
collection  of  taxes.  Revised  St:itut(>s,  sec.  3221;  Snyd(M-  r.  Marks, 
109  U.  S.  1S9;  Dodge  r.  Osborn,  240  V.  S.  11  s.  What  C\ingress  can 
do  in  curtailing  the  equity  power  of  the  federal  courts,  state  legis- 
latures may  do  in  curtailing  cMpiity  powers  of  the  state  courts;  un- 
less pnn-ented  l)v  the  constitutif)n  of  the  stat«'.  In  other  words  states 
are  free  since  the  adoption  of  the  Fourteenth  Amendment  as  they 


236  LEGALITY   OF   MEANS   USED  [CHAP.  IV 

were  before,  either  to  expand  or  to  contract  their  equity  jurisdiction. 
The  denial  of  the  more  adequate  equitable  remedy  for  private  wrongs 
is  in  essence  an  exercise  of  the  police  power,  bj^  which  in  the  interest 
of  the  public  and  in  order  to  preserve  the  liberty  and  the  property 
of  the  great  majority  of  the  citizens  of  a  state,  rights  of  property  and 
the  liberty  of  the  individual  must  be  remoulded,  from  time  to  time, 
to  meet  the  changing  needs  of  society. 

For  these  reasons,  as  well  as  for  others  stated  by  Mr.  Justice 
Holmes  and  Mr.  Justice  Pitney,  in  which  I  concur,  the  judgment 
of  the  Supreme  Court  of  Arizona  should,  in  my  opinion,  be  affirmed: 
—  first,  because  in  permitting  damage  to  be  inflicted  by  means  of 
boycott  and  peaceful  picketing  Arizona  did  not  deprive  the  plaintiff 
of  property  without  due  process  of  law  or  deny  him  equal  protec- 
tion of  the  laws;  and  secondly,  because  if  Arizona  was  constitu- 
tionally prohibited  from  adopting  this  rule  of  substantive  law,  it 
was  still  free  to  restrict  the  extraordinary  remedies  of  equity  where  it 
considered  their  exercise  to  be  detrimental  to  the  public  welfare, 
since  such  restriction  was  not  a  denial  to  the  employer  either  of  due 
process  of  law  or  of  equal  protection  of  the  laws.^ 


ENGLISH  PICKETING  LEGISLATION 

Combination  Act,  1825  (6  Geo.  IV,  c.  129),  Section  3 

See  supra,  page  2L 
Act  of  1859  (22  Vict.  c.  34),  Section  1 2 
Criminal  Law  Amendment  Act,  1871  (34  &  35  Vict.  c.  32),  Section  1 

See  supra,  page  22. 

Conspiracy  and  Protection  of  Property  Act,  1875  (38  &  39  Vict.  c.  86), 
Section  7 

See  supra,  page  23.' 

Trade  Disputes  Act,  1906  (6  Edw.  VII,  c.  47),  Section  2 

See  supra,  page  24. 

^  Mr.  Justifo  Pitney  rendered  a  separate  dissenting  opinion,  in  which  Mr. 
Justice  Clarke  coneurred. 

The  decision  of  Truax  v.  Corrigan  has  lieen  widely  criticized  throughout  the 
country.  See  10  Cal.  Law  Rev.  287,  22  Columbia  Law  Rev.  252;  31  Yale  Law 
Jour.  408.  The  case  is  also  commented  on  in  94  Central  I.iaw  Jour.  1,  55;  S  Va. 
Law  Rev.  298,  374;  28  West  Va.  Law  Quart.  144. 

Compare  Bopni  r.  Perotti,  224  Mass.  152. 

'  This  Act  provided  that  no  workman  should  "hy  reason  merely  of  his  en- 
deavoring peaceably,  and  in  a  reasonable  manner,  and  without  threat  or  intimida- 
tion, direct  or  indirect,  to  persuade  others  to  cea.'ie  or  abstain  from  work"  be 
deemed  or  taken  to  be  giiilty  of  "molestation"  or  "obstruction"  within  tiie  mean- 
ing of  the  Act  of  1825. 

'  As  to  the  law  of  |)icketing  under  this  statute,  .see  the  leading  English  case  of 
Lyons  v.  Wilkins,  [1899]  1  Ch.  255.  Sec  also,  Charnock  v.  Court,  [1899]  2  Ch.  35; 
Walters  v.  Green,  [1899]  2  Ch.  69G. 


I 


SECT.  VI]  VIOLENCE    OF    UNION    MEMBEII.S  237 

Section  6.     Legalitij  <>f  Union  Action  a.s  nffeded  by  Violence 
on  the  part  of  Union  Members 

Sampson,  J.,  in  DIAMOND  P.I.of'K  COAL  CO.  v.  UNITED 

MINK  \\()i;i\i;i{s 

188  A"(/.  477,  IS'J  (1020) 

(In  a  tjuit  '  Inou^lit  l»y  tlic  DiaiiiorHl  Block  Coal  Co.,  a  X'irKiilia 
corporation  engaf^cd  in  the  miniiiff  of  coal,  to  obtain  a  restraining 
order  against  the  dclcndants,  tlic  Inited  Mine  Workers  of  America, 
and  seventeen  individuals  named  in  the  petition  as  defendants,  and 
all  persons  working  by,  tln-ough  or  under  them,  or  in  their  employ- 
ment, Sampson,  J.,  in  the  course  of  his  opinion,  said:] 

It  may  be  urgetl  that  there  is  evidence  in  this  record  sufficient  to 
warrant  the  conclusion  that  certain  of  the  jx'rsons  named  in  the 
affidavit.s  as  making  tiu'cats,  or  proposing  injury  to  the  j)laintifT's 
employees  or  plant,  were  at  the  time  members  of  the  United  Mine 
Workers  of  America,  and  therefore  acting  for  and  on  Ix'half  of  the 
union.  Even  if  it  be  granted  that  these  men  or  any  one  or  more  of 
them  were  members  of  the  union,  and  that  they  made  the  state- 
ments with  which  they  are  charged,  no  injunction  would  lie  against 
the  organization  on  account  of  such  threats.  The  only  way  to  reach 
such  |XM"sons,  under  the  facts  of  this  case,  is  to  make  them  defend- 
ants and  if  it  had  been  shown  that  either  of  the  defendants  named 
had  threatened  to  and  was  about  to  invade  the  premises  of  the 
plaintiff,  intimidate,  coerce  or  alarm  its  employees,  injure  its  prop- 
erty or  property  rights,  or  otherwise  infringe  upon  its  lawful  rights 
the  injunction  would  not  be  dissolved  as  to  such  person,  if  it  were 
made  to  appear  that  the  plaintiff  would  suffer  irreparai)le  injury 
and  that  it  had  no  adequate  remedy  at  law.  But  tiiat  is  not  the 
ease  we  have  here.  .  .  . 

An  order  has  been  entered  dissolving  and  setting  aside  the  tem- 
porary injunction  granted  l)y  the  judge  of  the  Circuit  Court. 

Whole  court  sitting. 

Hadley  J.,  IN  KARC.ES  FURNITI'RE  CO.  v.  AMALGAAUTED 

WOODWORKERS'  LOCAL  UXIOX- 

165  Ind.  421,  430  (1905) 

IIadley,  J.  .  .  .  That  fourteen  of  the  six  hundred  members  of  the 
union  did  disregard  the  express  instructions  arul  declared  policy  of 
the  union  to  conduct  tin-  strike  p(>acefully.  and  of  their  own  initia- 
tive indulgiHl  in  acts  of  disorder  calculated  to,  and  did  in  fact,  in- 

For  the  fiicts  of  tho  cju'^o,  soo  infra,  p.  504. 
^  For  the  fuels  of  the  case,  see  infra,  p.  204. 


238  LEGALITY   OF   MEANS   USED  [CHAP.  IV 

tiinidate  the  plaintiff's  employees,  is  not  of  itself  sufficient  to  con- 
demn the  union  as  a  body.  The  strike  being  properly  conceived 
and  conducted  by  the  great  majority  of  members,  its  purpose  will 
not  be  defeated  b}^  the  unlawful  conduct  of  a  few  rowdies  and  law- 
breakers that  may  be  found  among  them.  "Where  a  combination 
or  association  is  innocent  in  its  inception,"  says  a  recent  author, 
''but  is  afterwards  perverted  to  unlawful  ends,  only  those  participat- 
ing in  the  perversion  are  held  to  be  conspirators."  1  Eddy,  Com- 
binations, sec.  368;  Carew  v.  Rutherford  (1870),  106  Mass.  1,  10; 
Commonwealth  v.  Hunt  (1842),  4  Mete.  Ill,  38  Am.  Dec.  346,  355; 
Union  Pac.  R.  Co.  v.  Ruef  (1902),  120  Fed.  102.^ 

HILL  V.  EAGLE  GLASS  &  MFG.  CO. 
U.  S.  Circuit  Court  of  Appeals,  Fourth  Circuit.     1915 

219  Fed.  719 

Appeal  from  the  District  Court  of  the  United  States  for  the 
Northern  District  of  West  Virginia,  at  Philippi;  Alston  G.  Dayton, 
Judge.  .  .  . 

Woods,  Circuit  Judge.  In  this  suit  for  injunction  by  the  Eagle 
Glass  &  Manufacturing  Co.  against  Thomas  B.  Rowe,  individually 
and  as  president,  and  a  number  of  other  officers  of  the  American  Flint 
Glass  Workers'  Union,  individually  and  in  their  official  capacity, 
aU  alleged  to  be  residentg^of  the  State  of  Ohio,  none  of  the  defend- 

»  In  Parkinson  Co.  v.  Building  Trades  Council,  154  Cal.  581,  603,  Beatty,  C.  J., 
said:  "I  have  not  overlooked  the  fact  that  there  was  evidence  that  two  or  three 
individual  members  of  the  unions  used  threatening  language  in  one  or  two  in- 
stances towards  other  members  who  spoke  of  returning  to  work,  and  there  may 
have  been  reason  to  conclude  that  they  would  continue  to  employ  threats  of  the 
same  character  to  deter  others  from  seeking  employment  with  the  plaintiff.  If 
so,  the  court  would  have  been  justified  in  enjoining  those  individuals,  but  there 
was  nothing  to  justify  an  injunction  against  the  council  or  the  unions,  or  their 
officers,  or  the  large  number  of  individual  members  who  made  no  threats." 

See  also  Aluminum  Castings  Co.  v.  Local  No.  84,  197  Fed.  221,  223;  Denaby 
&  Cadeby  Collieries  v.  Yorkshire  Miners'  Assn.,  [1906]  A.  C.  384  (liability  of 
union  for  illegal  acts  ordered  by  branch  local  union  officials  but  not  authorized 
by  union  regulations).  In  Connett  v.  United  Hatters  of  North  America,  76  N. 
J.  Eq.  202,  211,  Howell,  V.  C,  said:  "I  do  not  find  in  the  affidavits  any  proof 
that  the  national  association,  as  a  body,  engaged  in  encouraging  the  unlawful 
action  of  the  local  unions,  and  hence  no  injunction  can  run  against  that  body. 
I  do  find,  however,  that  John  A.  Moffit,  the  president  of  the  as.sociation,  not- 
withstanding his  {)ubli(!  utt(>rances  against  disturbances,  has  encouraged  the 
same,  and,  in  fact,  is  in  ciharge  of  the  strike.  His  utterances  on  February  12th, 
arc  entirely  inconsi.stent  with  those  in  which  he  counsels  peace,  and  arc  sufficient 
in  my  opinion  to  make  him  liable  to  be  enjoined." 

Where,  however,  the  union  itself,  as  distinguished  from  unauthorized  mem- 
bers of  it,  in  the  conduct  of  an  otherwise  lawful  strike,  authorizes  or  promotes 
acts  of  violence,  an  injunction  may  issue  against  the  union  to  restrain,  not  the 
strike,  but  the  illegal  acts  of  violence.  Cf.  Jones  v.  Maher,  62  Misc.  (N.  Y.) 
.388,  infra,  p.  038. 

Sec  also,  the  cases  in  Chap.  XI,  infra  (pp.  517,  ct  scq.). 


SECT.  VI]  VIOLLNCE    OF    UNION    MEMBEIW  23^ 

ants  were  served  except  Joseph  Gillooly,  a  nKiuljcr  of  the  executive 
board  and  one  of  the  organizers  ofTFiFlmion,  wlio  wiis  found  in  the 
State  of  West  \'irginia.  A  teni[jorary  ortK-r  was  grant^'d  restraining 
the  defendants  from  doing  certain  alleged  illegal  acts  in  furtherance 
of  their  allegecj  illegal  scheme  to  unionize  the  plaintiff's  [ilant.  The 
fact  tiKiLXiilNjuU'  was  not  a  resident  of  theJState  of  OUio^Jjut^i  the 
State  of  West  Virginia,  having  been  niacle  to  ap[)<'ar  through  his 
counsel,  Mr.  John  A.  Howard,  the  court  dismissed  the  bill  as  to  him 
and  retained  it  as  to  the  other  defendants,  on  the  ground  that  Mr. 
Howard  iitid  formally  ap|X3ared  for  all  the  defendants.  Mr.  Hcnvard 
having  made  a  {M-ifectly  clear,  uncontroverted  showing  to  the  court 
that  he  had  no  authority  to  represent  the  other  defendants,  and 
that  he  had  app(>are(l  generally  by  inadvertence,  when  he  intended 
to  appear  for  (Jillooly  alone,  the  court  upon  the  most  obvious  prin- 
ciples of  right  and  common  sense  oidercd  the  appearance  as  to  the 
defendants  other  than  Ciillooly  struck  out. 

In  the  meantime,  however,  on  November  27,  1913,  an  order  was 
made  allowing  the  plaintiffs  to  amend  the  bill  by  making  Peter  J. 
Ghusstetter  and  others,  members  at  Steubenville,  (^hio,  of  the  xVmeri- 
can  Flint  CUass  \\'orkers'  Union,  defendants.  The  amended  bill 
alleged  that  these  m(>mbers  of  the  union  were  as.sisting  the  ofhcers 
of  the  union  named  in  the  original  bill  "in  the  efforts  to  unionize 
plaintiff's  employees  and  to  force  plaintiff  to  recognize  said  Ameri- 
can Flint  (ilass  Workers'  Union."  The  new  parties  defendant  sui>- 
mitted  affidavits  that  they  were  only  members,  not  officers,  of  a 
local  union,  that  Rowe  and  others,  who  were  the  general  officers  of 
the  union,  were  not  authorized  to  represent  them  in  their  alleged 
illegal  acts,  and  that  they  knew  nothing  of  their  efforts  to  unionize 
plaintiff's  factory.  There  was  no  slunving  whatever  to  the  contrary. 
Under  these  conditions  the  court  issued  a  temporary  injunction 
against  all  of  the  defendants  named  in  the  bill  and  the  amended 
bill,  except  Gillooly,  as  to  whom  the  liill  had  been  dismissed. 

We  think  this  was  error.  Rowe  and  others,  general  officers  of 
the  union,  were  not  served,  and  therefore  no  relief  could  l>e  given 
against  them,  unless  it  could  be  said  they  were  brought  before  the 
court  by  representation  when  Cdasstetter  and  others,  mere  memlx'rs 
of  the  loc;d  union,  were  ordered  to  l)e  made  parties  and  appeared. 
This  effect  is  asserted  under  e(iuitv  rule  38  (198  Fed.  29,  115  C.  C.  A. 
29): 

"When  the  question  is  one  of  common  or  general  interest  to  many 
persons,  constituting  a  cla.ss  so  numerous  as  to  maki'  it  impracticable 
to  bring  them  all  l)(>fore  the  court,  one  or  more  may  sue  or  defend 
for  the  whole." 

The  union  is  a  voluntary  association,  and  its  memb'^'^  anuioL-j**— 
sponsil3le~Tor  a  tort_ofj'ther  members,  unless  they  liave  authorizetl 
or^pailicipated  init,  or"  have  ai(led  in  some  way  in  its  )>er]>etratmn 
alter  knowledge  of  the  illegal   purpose,  or  facts  from  which  such 


240  LEGALITY    OF   MEANS    USED  [CHAP.  IV 

LnowledgejaajUigJnfglxed.  Pettibone  v.  U.  S.,  148  U.  S.  197,  13 
SupT'CtTsS/S?  irEdr4t^;  Lawlor  v.  Loewe,  209  Fed.  721,  126 
C.  C.  A.  445. 

\ATien  the  allegation  of  a  general  or  common  interest  to  manj'  per- 
sons is  denied,  the  duty  devolves  on  the  court  to  determine  whether 
the  common  or  general  interest  exists  before  decreeing  against  those 
who  are  alleged  to  be  in  court  by  representation.  The  plaintiff  had 
no  pretense  of  a  case  against  Glasstetter  and  the  other  defendants, 
brought  in  by  amendment  for  participating  or  aiding  the  defend- 
ants not  served,  in  the  alleged  torts  committed  bj^  them,  and  there- 
fore there  was  no  such  common  or  general  interest  as  authorized  the 
court's  decree  against  the  defendants  served,  by  virtue  of  the  serv- 
ice and  appearance  of  the  defendants  brought  in  by  amendment.  .  .  . 
Reversed.^ 

1  The  holding  of  the  Circuit  Court  of  Appeals  as  to  the  liability  of  union  mem- 
bers for  unauthorized  acts  of  other  union  members  or  officers  was  affirmed  by 
the  U.  S.  Supreme  Court  (245  U.  S.  275),  Pitney,  J.,  saying  (page  280):  "So 
far  as  the  decision  of  the  Circuit  Court  of  Appeals  dissolved  the  temporary  in- 
junction upon  the  ground  that  the  Steuben ville  defendants  had  denied,  and 
plaintiff  had  not  adduced  sufficient  evidence  to  sustain,  the  averment  of  the 
amended  bill  that  the}'  had  constituted  Gillooly  and  the  other  original  defend- 
ants their  agents  and  representatives  and  had  assisted  and  supported  them  in 
their  efforts  to  unionize  plaintiff's  employees  and  force  plaintiff  to  recognize 
the  American  Flint  Glass  Workers'  Union,  we  see  no  reason  to  disturb  the  de- 
cision." The  decree  of  the  Circuit  Court  of  Appeals,  however,  was  reversed, 
on  other  grounds. 

In  Carew  v.  Rutherford,  106  Mass.  1,  10,  Chapman,  C.  J.,  says:  "The  doc- 
trine stated  in  Com.  v.  Hunt,  4  Metcalf,  111,  129,  is  unquestionably  correct, 
namely,  that  when  an  association  is  formed  for  purposes  actually  innocent,  and 
afterwards  its  powers  are  abu.sed  by  tho.se  who  have  the  control  and  manage- 
ment of  it,  to  purposes  of  oppression  and  injustice,  it  will  be  criminal  in  those 
who  misuse  it,  but  not  in  the  other  members  of  the  association.  Upon  the  same 
principle,  if  the  wrongful  acts  done  are  tortious,  whether  criminal  or  not,  the 
persons  who  are  guilty  of  the  tortious  acts  will  be  civilly  liable  to  those  whom 
they  have  injured." 

In  Lawlor  v.  Loewe,  187  Fed.  522,  526  (C.  C.  A.),  the  Court  says:  "It  has  been 
argued  here  that  the  mere  fact  that  any  individual  defendant  was  a  member  of 
and  contributed  money  to  the  treasurj^  of  the  United  Hatters'  A.ssociation  made 
him  the  i)rincipal  of  any  and  all  agents  who  might  be  employed  l)y  its  officers 
in  carrying  out  the  objects  of  the  as.sociation,  and  responsible  as  principal  if  such 
agents  u.sed  illegal  methods  or  caused  illegal  methods  to  be  used  in  undertaking 
to  carry  out  those  objects.  We  cannot  as.sent  to  this  proposition.  The  clause 
of  the  constitution  of  the  United  Hatters  which  provides  that  certain  of  its  officers 
'  shall  use  all  the  means  in  their  power  to  bring  .such  shops  (i.  e.,  non-union  shops) 
into  the  trade  '  does  not  necessarily  imply  that  these  officers  shall  use  other  than 
lawful  means  to  accomplish  such  object.  Surely  the  fact  that  an  individual 
joins  an  as.sociation  having  such  a  clause  in  its  constitution  cannot  be  taken  as 
expressing  a.s.sent  by  him  to  the  perpetration  of  arson  or  murder.  Something 
more  must  lie  shown,  as  for  instance,  that  with  the  knowledge  of  the  members 
unlawful  means  had  been  so  frequently  u.sed  with  the  express  or  tacit  approval 
of  the  association,  that  its  agents  were  warranted  in  assuming  that  they  might 
use  such  unlawful  means  in  the  future,  that  the  a.s.s()ciation  and  its  individual 
meml)ers  would  approve  or  tolerate  such  u.se  whenever  tiie  end  sought  to  be  ob- 
tained might  be  best  obtained  thereby."     The  plaintiffs  in  this  case  thereafter 


SECT.  VI]  VIOLEXCE    OF   UNION    MEMBERS  241 

petitioned  the  SuprcriKr  Court  for  a  writ  of  certidrari,  whifh  wa8  denie<l,  223 
U.  S.  721).  In  subsequent  proceedings,  in  the  eii.s<*  of  Lawlor  c.  lyjewe,  2.'i5  l'.  S. 
522,  r)34,  Holnies,  J.,  siiid:  "Tlie  eourt  in  suhstjirire  instructed  the  jury  tiiut 
if  these  ineinlK;rs  pnid  their  (hies  and  continued  to  delegate  autliority  to  tlieir 
officers  unhiwfully  to  interfere  witii  tiie  phiintifTs'  interstate  conunerce  in  such 
circumstances  that  they  knew  or  ou^ht  to  have  iiiiown,  and  such  officers  were 
warranteil  in  the  l)elief  that  tiiey  wen;  actinj^  in  tl>e  matters  witliin  their  dele- 
gated authority,  then  such  nu'ml)ers  were  jointly  hahle,  and  no  otliers." 

In  Poi)e  Motor  ('ar  ('o.  v.  Keegan,  lot)  Fed.  14H,  151  (C  C),  nupra,  |).  207, 
Tayler,  J.,  rendering  the  o|)inion  in  the  (Jircuit  Court,  said:  "I  cannot  esi-ajie 
the  conchi.sion  that,  under  tlie  circumstances  of  this  ciLse,  where  the  defenchintA 
arc  maile  .such  in  their  iinhvidual  capacity,  and  not  in  any  organized  capacity, 
it  would  \h'  a  gro.ss  injustice  to  attach  to  j)ersons  who  have  not  Ix-en  shown  to 
\)C  participants  in  these  tran.'^jictions  the  stigma  of  an  injunction,  or  to  make 
them  —  as  they  might  i)e  without  further  order  of  the  court  —  subject  to  the 
payment  of  any  costs  which  necessarily  accrue  in  such  a  cjuse."  See  also,  I'nited 
States  V.  Gomez,  H  Phil.  (\:U),  (551.  Cf.  Michaels  i-.  Hillman,  1H.3  N.  V.  Supp. 
195,  20«). 

Liahility  for  U.N.\nTMoui7.Kn  Arrs  on  tuk  (Jroi'nu  ok  HATtKir.\Tio\.  In 
some  ca.ses  unions  have  Imen  lield  liable  for  the  imauthorized  illegal  acts  of  unicjn 
members  where  ratification  or  .s^inction  of  the  iUegal  acts  on  the  part  of  the  imions 
could  be  i)roved.  Such  ratification  may  l)e  implied  Jis  well  as  exjjrr'.ss.  Where 
the  unauthorized,  illegal  acts  are  of  a  sufficiently  .serious  nature,  ratification  ha.s 
in  .some  cases  be(>n  implied  from  the  tacit  acceptance  by  the  union  of  the  l>enefits 
of  tlie  illegal  acts  and  the  failure  of  union  officers  to  whose  attention  the  matter 
has  been  brought  to  di.siivow  the  illegal  acts  or  discipline  the  offending  mem- 
bers. Sec,  in  this  connection,  I'nion  Pacific  I{y.  Co.  r.  lluef,  120  Fed.  102;  Allis- 
Chalmers  Co.  v.  Iron  Molders'  Tnion  Xo.  125,  150  Fed.  155;  Phillips  Sh(H>t  <\:  Tin 
Plate  Co.  V.  .'Vmalgamated  .\.s.sn.,  20S  Fed.  335;  Ala.ska  Steamship  Co.  v.  Inter- 
national Ivongshoremen's  A.ssn.,  230  I<Vd.  9()4;  Kroger  Co.  v.  Retail  Clerks'  In- 
ternational Protective  .\ssn.,  250  Fed.  890. 

As  to  the  general  liability  of  a  trade  union  and  its  individual  memliers  for  the 
unauthorized  acts  of  other  members,  see  the  cases  infra,  Chaps.  XI  and  XII,  pp. 
517  ff.,  ()0S  ff. 

LKG.A.LITY  OF  Sthikrs  .\rroMP.\NTED  BY  VIOLENCE.  The  qucstioH  of  the 
legality  of  the  strike,  called  for  a  legal  purpo.se  but  accompanied  by  unauthorized 
violence,  is  not  to  be  confused  with  the  foregoing  kindred  questions  of  the  lia- 
bility of  the  trade  union  or  of  ordinary  trade  union  members  for  unauthorized 
illegal  conduct  attending  .'Juch  a  strike.  Where  a  strike  is  palled  for  a  legal  enfl, 
for  example,  to  secure  higher  wages,  even  though  the  strike  leaders  authorize 
violence,  if  the  union  regulations  or  by-laws  do  nf)t  authorize  .such  action,  should 
the  injunction  be  i.ssued  in  such  terms  as  to  re.strain  the  strike  it.self,  or  merely 
the  use  of  violence  or  other  specified  illegal  means  in  the  conduct  of  the  strike? 

"The  purjjose  })eing  lawful,  if  unlawful  means  are  used  to  effectuate  it,  such 
means  cannot  be  made  to  reach  back  and  taint  the  puq'ose  itself  with  unlawful- 
ness and  thus  render  unlawful  all  the  acts  in  its  furtherance."  Tri-City  Central 
Trades  Council  t'.  .Viucricau  StccI  Foundries,  238  Fed.  728,  732. 


Qjiy\ 


CHAPTER  V 


LEGALITY  OF  ENDS  PIT^SFED  THROUGH  COLLEC- 
TIVE ACTION  BY  LABOR  ORGANIZATIONS 

Section  1.    General  Principles 

(A)  The  Effect  of  Motive  upon  the  Legality  of  Acts  * 

BROTHERS  v.  MORRIS 

Supreme  Court  of  Vermont.    1877 

49  Vt.  460 

Trespass  for  assault  and  battery.  Pleas,  the  general  issue,  and 
a  special  plea  in  bar,  alleging  that  the  plaintiff  was  unlawfully  in 
the  counting-room  of  which  the  defendant  was  lawfully  possessed, 
making  a  great  noise  and  disturbance,  and  obstructing  the  defendant 
in  the  performance  of  his  lawful  duties,  and  that  the  defendant 
thereupon  requested  him  to  depart,  which  he  refused  to  do,  where- 
upon the  defendant  gently  laid  his  hands  upon  him  in  order  to  remove 
him  from  said  room,  and  did  remove  him  therefrom.  Replication, 
de  injuria,  and  joinder.  Trial  by  jury,  December  Term,  1876,  Powers, 
J.,  presiding. 

The  facts  are  sufficiently  stated  in  the  opinion. 

The  court  charged,  among  other  things,  as  follows: 

What  was  the  conduct  of  the  plaintiff  in  the  office  towards  the 
defendant,  and  what  was  the  conduct  of  the  defendant  towards 
the  plaintiff?  The  solution  of  that  question  may  serve  to  deter- 
mine this  whole  matter.  It  may  serve  as  a  hinge  upon  which  this 
whole  thing  turns.  And,  in  order  to  determine  precisely  what  the 
real  fact  was,  you  have  the  right  to  consider  the  prior  relations  of 
th(!  parties.  How  did  they  stand  towards  each  other  —  in  a  friendly 
or  unfriendly  attitude?  Was  the  visit  of  the  plaintiff  a  visit  in  good 
faith  for  a  lawful  purpose?  Was  it,  on  the  other  hand,  a  visit  for 
the  purpose  of  inviting  a  controversy?  And  on  the  part  of  the  de- 
fendant, what  he  said  and  did,  was  he  in  any  way  actuated  by  any 
prior  hostile  feeling  then  operating  on  his  mind?    Did  he  at  that 

1  See  upon  this  subjcrt  Ames,  How  Far  an  Act  May  be  a  Tort  Because  of 
Wrongful  Motive  of  Aclor,  IS  II.  L.  R.  411;  Walton,  Motive  as  an  Element  in 
Torts,  22  II.  L.  R.  501;  Smith,  Crucial  I.ssues  in  Labor  Legislation,  20  H.  L.  R. 
451 ;  German  Civil  Code,  sec.  226;  Planiol,  Trait6  Elementaire,  vol.  2,  sees. 
870,  87L 

Hi 


i 


SECT.  I]  GENERAL    PRINCIPLES  243 

time,  in  what  ho  did,  make  the  claiiii  tiiat  ho  was  dofending  hi.s  pos- 
session for  the  purpose  of  venting  liis  spite  and  violence  upon  the 
plaintiff?  If  he  was,  then  he  is  not  justified,  iK'oause  he  says  in  his 
plea  tiiat  he  used  this  violence  to  defend  his  possession.  But  if  he 
only  u.sed  the  possession  as  a  cover  for  his  malice,  and  used  this  vio- 
lence maliciously  towards  the  ijlaintifT,  ho  cannot  then  go  lx,*hincl 
this  claim  of  a  defence  of  possession  and  Ix;  justified.  It  must  Ik*  an 
honest  defence  —  just  what  he  says  it  is.  It  must  Iw  honest  us  a 
defence  of  tiie  possession,  and  not  a  mere  malicious,  inexcusable 
assault  upon  the  plaintiff. 

To  that  portion  of  the  charge,  the  defendant  excepted.  \'erdict 
for  plaintiff. 

PiKUi'<)i.\T,  C.  J.  The  only  (piestion  involved  in  this  cjuso  arises 
upon  tlie  charge  of  the  court.  It  ap|K'ars  fnjm  the  exceptions,  that 
the  defendant  was  the  president  of  a  corporation  known  a,s  the 
Ottautpioechee  Woolen  Co.,  which  owned  a  factory  building  at 
North  Ilartland,  and  manufactured  goods  there,  having  a  counting- 
room,  or  oflico,  in  said  l)uil(ling;  that  defendant  was  also  the  super- 
intendent of  the  works  of  said  coinpan\',  and  had  charge  of  the  fac- 
tory building,  office,  etc.  It  also  appears,  that  prior  to  January,  1875, 
the  plaintiff  had  been  president  and  superintendent  of  said  com- 
pany, but  at  said  time  he  ceased  to  i)o  such,  and  the  defendant  was 
appointed  to  th(^  place,  whicii  he  held  at  the  time  of  the  acts  com- 
plained of.  It  further  appeared,  that  prior  to  the  14th  day  of  De- 
cemlx^r,  1875,  there  had  been  a  misunderstanding  between  the 
parties  as  to  the  business  of  the  company,  and  that  an  ill  fooling 
existed  between  them.  On  the  last  named  day,  the  plaintiff  wont 
into  the  office  of  the  company,  where  the  defendant  was  engaged 
in  i)usiness,  and  a  verbal  altercation  arose  between  them,  and  the 
defendant'  ordered  the  plaintiff'  to  leave  the  office.  The  plaintiff 
refus(>(l  to  go,  but  said  ho  would  when  ho  had  finished  his  business. 
Th(>  altercation  continued,  and  the  defendant  again  ordered  the 
plaintiff  to  leave,  which  he  refu-scd  to  do,  as  before.  The  defendant 
then  Ijrought  in  assistance  and  removed  the  plaintiff  from  the  build- 
ing, and  in  doing  this,  inflicted  the  injury  complained  of. 

Under  th(^  pleadings  and  the  facts  developed  upon  the  trial,  the 
question  was,  wiiether  th(^  def(>ndant  was  justified  in  removing  the 
jilaintiff  from  the  building  in  the  manner  he  did;  and  this,  of  course, 
depended  upon  the  question  whether,  under  the  circumstances  of 
the  case,  he  had  the  legal  right  to  do  so.  If  ho  had,  and  exorcised 
that  right  in  a  prop(M-  maiuuM',  using  no  unnecessary  forc(\  then  he 
is  justified;  and  his  justification  does  not  depend  upon  the  motive 
or  the  spirit  in  which  the  legal  act  was  done.  He  may  have  \x^n 
influenced  by  spit(\  ill  will,  or  malic(^  but  if  h»>  only  did  that  which 
ho  had  a  riglit  to  do,  h(>  is  not  lial)le. 

'  The  prronoous  wording  of  tho  oriiiin:il  roport  —  "and  the  plaintiff  ordered 
the  defendant  to  leave"  —  has  heen  here  corrected.  —  Ed. 


244  LEGALITY   OF   ENDS   PURSUED  [CHAP.  V 

The  court,  in  submitting  the  case  to  the  jury,  seem  to  have  so 
presented  it  that  the  jury  would  naturally  understand  that  the 
motive  with  which  the  act  was  done  was  the  controlling  consider- 
ation; the  point  on  which  they  were  to  turn  the  case.  It  is  to  be 
noticed  that  the  question  was  not  whether  the  assault  was  made 
for  the  purpose  of  putting  the  plaintiff  out  of  the  building,  or  for 
the  purpose  of  doing  him  an  injury,  and  not  to  put  him  out.  If  it 
had  been,  the  charge  would  have  been  more  appropriate,  and  the 
case  would  have  been  similar  to  that  of  Watrous  v.  Steele,  4  Vt. 
629.  But  here  the  whole  case  shows  that  the  assault  was  made  for 
the  purpose  of  putting  the  plaintiff  out;  and  the  substantial  injury 
was  done  in  executing  that  purpose. 

But  it  is  said  this  court  ought  to  presume  that  the  other  part  of 
the  charge  was  such  as  to  cure  the  defect  in  the  part  given.  There 
is  nothing  upon  which  to  base  such  a  presumption.  We  only  know 
that  the  other  part  of  the  charge  was  not  excepted  to.  In  fact,  it 
would  be  difficult  to  suppose  a  charge  that  would  have  such  effect, 
as  the  court  in  this  part  present  the  motive  of  the  defendant  as  the 
"hinge"  upon  which  the  whole  case  is  to  turn. 

Judgment  reversed  and  cause  remanded.^ 


BOYSON  V.  THORN 
Supreme  Court  of  California.     1893 

98  Cal.  578 

Haynes,  C.  Defendant  demurred  to  plaintiff's  complaint,  the 
demurrer  was  sustained,  and  judgment  was  thereupon  rendered 
dismissing  the  action,  from  which  judgment  the  plaintiff  appeals. 

The  complaint  alleges  that  Frank  G.  Newlands  is  the  owner  and 
in  possession  and  control  of  the  Palace  Hotel  in  the  city  of  San  Fran- 
cisco, and  of  a  public  restaurant  attached  thereto,  and  conducted 
the  same  as  a  hotel  and  restaurant,  and  that  the  defendant  during 
all  the  times  mentioned  in  the  complaint  was  the  agent  of  Newlands, 
and  as  such  had  charge  of  the  business  thereof  and  direction  of  the 
servants  therein;  that  immediately  prior  to  November  1,  1889, 
Newlands  entered  into  an  agreement  whereby  plaintiff  hired  certain 
rooms  in  said  hotel,  as  lodgings  for  himself  and  wife  from  Novem- 
ber 1,  1889,  at  the  monthly  rent  of  our.  hundred  dollars;  that  they 
were  to  have  their  meals  at  said  restaurant,  or  furnished  from  said 
restaurant  to  their  said  rooms,  he  paying  therefor  the  usual  rates; 
that  they  entered  and  occupied  the  rooms,  and  in  all  things  complied 
with  said  agreement,  but  that  on  December  f),  1S89,  the  "defendant 
maliciously  and  with  intent  to  oppress,  annoy,  and  distiu"!)  jilaintiff 
in  the  occupancy  of  liis  lodgings,  and  to  force  him  to  al)andon  the 

•  Accord:  Smith  v.  Johnson,  76  Pa.  St.  191;  ITuinphroy  r.  Douglass,  11  Vt. 
22;   Tho  Soiitli  Royalton  B;uik  v.  The  Suffolk  H:uik,  27  Vt.^Of). 


SECT.  I]  GENTinAL    PRINCIPLES  245 

same,  and  to  deprive  hiia  of  tlie  comforts  and  convonionecs  whicli 
h(!  was  then  and  tlicre  enjoying,  and  to  injure  him  in  his  profession, 
and  to  degrade  and  belittle  him  in  the  eyes  of  the  guests  of  s  id 
hotel  and  of  his  friends  and  of  the  public  in  general,  and  in  fraud  of 
said  agreement,  caused  and  procured  V.  (i.  Xewlands  then  arui  there 
to  demand  that  plaintiff  and  his  wife  forthwith  vacate  said  lodgings." 
It  is  further  chaiged  that  defendant  malici(iusly  cau.sed  and  pro- 
cured Xewlands  to  refuse  to  fiM'nish  meals,  etc.,  and  to  instruct  tin* 
servants  to  refuse  their  orders;  and  that  on  DecemlM-r  12,  IHSI), 
defendant  maliciou.sly  eau.sed  and  procured  Xewlands  to  threaten 
and  attemj)t  to  forcibly  eject  plaintiff  and  his  wife  from  said  rooms, 
whereby  his  wife  became  ill,  and  he  was  compelled  to  and  did  em- 
plo}'  a  nuise  at  an  expense  of  sixty  dollars,  and  also  to  hire  men  to 
protect  his  wife  and  retain  possession,  etc.,  at  a  furth<'r  expense  of 
sixty  dollars,  and  prays  for  t\veiity-fi\('  thousand  one  hundri'<|  and 
twenty  dollars  damagc^s. 

The  action  is  against  Thorn  alone.  The  deinurrcr  is  that  the  facts 
stated  do  not  constitute  a  cause  of  action  against  the  defen<lant. 

The  bi'oad  question  presented  is  whether  an  action  will  lie  against 
one  who,  from  malicious  motives,  but  without  threats,  violence, 
fraud,  falsehood,  tleception,  or  beiuTit  to  him.self,  induces  another 
to  violate  his  contract  with  the  plaintiff.  Wo  state  the  (piestion  thus 
becau.se  it  will  be  olxserved  that  the  complaint  does  not  state  the 
means  u.sed  to  cause  or  procure  Newlands  to  violate  his  contract 
with  the  plaintiff,  but  only  that  it  was  done  "maliciously." 

Th(^  general  rul(>  is  that  only  those  who  are  parties  to,  or  in  some 
manner  bound  by  a  contract,  are  liable  for  a  breach  of  it.  To  this 
general  rule  there  are  certain  exceptions,  as,  for  example,  contracts 
for  personal  .services  involving  the  relation  of  master  and  servaiit; 
and  there  are  also  other  cases  that  are  sometimes  cla.s.sed  as  excep- 
tions, but  which  are  not  strictly  so.   .  .  . 

The  facts  alleged  in  the  complaint  do  not  bring  the  case  within 
the  principle  governing  cases  involving  the  relation  of  master  and 
servant,  nor  of  those  other  ca.ses  where  a  contract  is  procured  to  \^o 
broken  by  fraud,  dcH-cMt,  .slander,  or  other  actional)le  wrong,  as  in 
Rice  V.  Manl(>y,  and  other  cases  above  noticed.  It  is  conceded  by 
appellant,  and  it  is  unquestionably  true,  that  "one  may  advise  a 
friend  in  all  honesty,  and  without  ill-will  to  tiie  other  contracting 
party,  to  iihkh  the  risks  of  breaking  an  onerous  or  mischievous  con- 
tract, rather  than  tho.se  of  performing  it."  In  Bowen  v.  Hall,  Law 
R.  6  Q.  B.  D.  338,  Brett,  L.  J.,  said:  "^r(M■ely  to  persuade  a  i^rson 
to  break  his  contract  may  not  be  wrongful  in  law  or  fact."  This 
being  true,  will  the  fact  that  the  advice  or  persuasion  proceeds  from 
malicious  motives  create  a  li;d)ility  where  the  same  advice  or  per- 
suasion, if  given  from  good  motives,  would  not? 

In  considering  this  question  the  distinction  between  civil  aiul 
criminal  proc(HMlings  must  not  be  overlooked. 


246  LEGALITY   OF   ENDS   PURSUED  [CHAP.  V 

In  the  dissenting  opinion  of  Lord  Coleridge,  C.  J.,  in  Bowen 
V.  Hall,  Law  R.  6  Q.  B.  D.  343,  the  question  above  presented  is 
answered  thus:  "It  is,  I  believe,  also  admitted,  except  by  Sir  Wil- 
liam Erie,  whom  I  think  no  one  has  ever  followed,  that  if  a  man 
endeavors  to  persuade  another  to  break  his  contract  and  succeeds 
in  his  endeavor,  yet  if  he  does  this  without  what  the  law  calls  '  mal- 
ice,' the  damage  which  results,  however  great,  is  not  in  itself  a  cause 
of  action,  I  mean,  of  course,  a  cause  of  action  against  him;  but  if 
the  damage  which  is  not  in  itself  actionable,  be  joined  to  a  motive 
which  is  not  in  itself  actionable,  the  two  together  form  a  cause  of 
action.  This  seems  a  strange  conclusion.  ...  I  do  not  know,  ex- 
cept in  the  case  of  Lumley  v.  Gye,  2  El.  &  Bl.  216,  that  it  has  ever 
been  held  that  the  same  person  for  doing  the  same  thing  under  the 
same  circumstances,  with  the  same  result,  is  actionable  or  not  action- 
able according  to  whether  his  inward  motive  was  selfish  or  unselfish 
for  what  he  did.  I  think  the  inquiries  to  which  this  view  of  the  law 
would  lead  are  dangerous  and  inexpedient  inquiries  for  courts  of 
justice;   judges  are  not  very  fit  for  them,  and  juries  are  very  unfit." 

It  is  a  truism  of  the  law  that  an  act  which  does  not  amount  to  a 
legal  injury  cannot  be  actionable  because  it  is  done  with  a  bad  in- 
tent; that  what  one  has  a  right  to  do  another  cannot  complain  of. 
It  is  conceded  that  one  may  lawfully  persuade  or  procure  another 
to  break  his  contract  with  a  third  person,  "if  it  be  done  from  good 
motives."  We  think  the  qualification  has  no  place  in  the  proposi- 
tion. If  it  is  right,  and  the  means  used  to  procure  the  breach  are 
right,  the  motive  cannot  make  it  a  wrong  any  more  than  a  good 
motive  would  justify  fraud,  deceit,  slander  or  violence  to  effect  the 
same  purpose.  Suppose  A,  by  fraudulent  representations,  induces 
B  to  sell  him  a  large  quantity  of  goods  upon  credit,  intending  to 
defraud  B  of  the  entire  value  of  the  goods.  C,  knowing  that  the 
representations  are  false,  and  not  caring  whether  B  shall  lose  his 
goods  or  not,  but  of  unmixed  malice  and  ill-will  toward  A,  procures 
B  to  refuse  to  deliver  the  goods  by  truthfull}'  informing  B  of  the 
falsity  of  the  representations  made  by  A,  will  it  be  said  that  C  is 
hable  in  an  action  brought  by  A?  In  Cooley  on  Torts,  2d  ed.,  p.  832, 
the  learned  author  says:  "Bad  motive  by  itself,  then,  is  no  tort. 
Malicious  motives  make  a  bad  act  worse,  but  they  cannot  make  that 
a  wrong  which  in  its  own  essence  is  lawful.  When  in  legal  pleadings 
the  defendant  is  charged  with  having  wrongfully  done  the  act  com- 
plained of,  the  words  are  only  words  of  vituperation,  and  amount 
to  nothing  unless  a  cause  of  action  is  otherwise  alleged."  Again  the 
same  author,  at  page  836,  says:  "Motive  generally  becomes  im- 
portant only  when  the  damages  for  a  wrong  arc  to  be  estimated. 
It  then  comes  in  as  an  element  of  mitigation  or  aggravation,  and  is 
of  the  highest  importance."  .  .  . 

It  may  be  (juestioned  whether  the  omission  to  allege  that  Thorn 
knew  of  the  contract  between  appellant  and  Newlands  is  not  fatal 


SECT.  I]  GENERAL    I'lilXClI'LES  247 

to  the  complaint,  but,  as  wo  concliKh'  tliat  tlic  dcnmrrer  \va,s  prop- 
erly sustained  upon  the  principal  point  made,  it  is  not  necessary  to 
consider  it. 

We  arc  of  the  opinion  llial  the  jiidti;ni('nt  appcalcil  from  should 
be  aflirmed. 

Te.\iple,  C,  and  Skaul.s,  ('.,  concuncd. 

For  the  reasons  given  in  the  forcj^oing  opinion,  tin-  jutlKnient 
appealed  from  is  aflirmed. 

Mc  1' AUL.\.\D,  .].,  Dk    HaVE.V,  .].,  FiTZGEUALD,  J. 


COBB  V.  CATER 

Supreme  Court  of  South  Caroli.na.     1900 

59  S.  C.  462 

Action  for  daniafz;(\s  f(jr  poisoning  a  setter  dog  by  C.  E.  Cobl)  and 
W.  H.  Humphreys  against  A.  P.  Cater.  From  judgment  for  defend- 
ant, plaint ifTs  appeal. 

Mii.  JisTicE  (  Iauy  delivered  the  opinion  of  the  Court.   .   .  . 

It  will  not  he  necessary  to  consider  the  other  exceptions  in  de- 
tail, as  they  all  assign  error  to  his  Honor,  the  presiding  judge,  in 
stating  the  law  as  to  the  right  of  a  person  to  put  out  poison  on  his 
premises  for  the  protection  of  his  prt)j)erty  from  prowling  animals. 
The  record  contains  the  following  statement:  "After  being  out  for 
some  time,  the  jury  returned  to  the  court  room  for  further  instruc- 
tions. The  Court  asked  the  foreman  whether  the  jury's  difficulty 
was  one  of  law  or  of  fact,  to  which  the  foreman  replieil,  '  wi-  wish  to 
know  what  you  charged  in  reference  to  how  near  his  dwelling  a  man 
may  put  the  poison  on  his  own  premises?  '  In  response  to  this  in- 
quiry, the  Court  charged  that  a  man  has  a  right  to  put  out  poison 
anywhere  on  his  prenuses  to  j)rot(M"t  them  from  the  ravages  or  dep- 
redations of  dogs,  minks  or  other  preying  varmints,  if  he  has  due 
regard  to  the  safety  of  human  life;  that  he  must  have  tlue  care  and 
exercise  due  caution  not  to  injure  human  life;  and  if  he  puts  out 
poison  to  protect  his  property,  and  a  dog  invades  his  premises  and 
gets  the  poison,  under  sucli  circumstances  the  owner  would  not  be 
liable  for  damages;  but  if  he  puts  out  poi.son,  not  for  the  protection 
of  his  property,  but  with  the  intent  to  kill  his  neighbor's  dog,  then 
he  would  be  liable  for  damages."  The  respondent's  attorneys  thus 
stated  in  their  argument  the  substance  of  the  charge  on  this  sul)ject: 
"The  charge  was  substantially  that  a  man  had  a  right  to  put  poison 
on  his  premises  for  the  protection  of  his  property,  having  a  due 
regard  for  the  safety  of  human  life,  and  that  if  a  neighlx>r's  dog  came 
trespassing  and  got  the  poi.'^on,  the  defendant  would  not  Ix^  liable. 
He  finther  sai<l  tiiat  if  he  placed  the  poi!5(ni  out.  nvt  to  protect  his 
property,  but  with  the  intention  to  kill  his  neighbor's  dog,  th(>n  he 
would  Ix^  liable."    There  is  a  familiar  and  wholesome  maxinj  of  law. 


248  LEGALITY    OF    ENDS    PURSUED  [CHAP.  V 

"sic  utere  tuo  ul  alienum  non  laedas^  When  a  person  puts  out  poison 
on  his  premises,  he  knows  that  the  natural  —  indeed,  the  intended 
—  result  is  to  destro}^  his  neighbor's  animals.  Knowing  and  in- 
tending such  to  be  the  result,  he  should  be  guided  by  reason  and 
prudence  in  thus  destroying  the  property  of  others.  The  presiding 
judge  did  not  charge  that  a  person  had  an  absolute  right  to  put  out 
poison  on  his  premises,  but  that  it  was  to  be  exercised  with  limita- 
tions which  he  stated.  The  rule  which  the  law  prescribes  is  that  a 
person  exercising  the  right  to  put  out  poison  on  his  premises  shall 
act  with  such  care  as  might  reasonably  be  expected  of  a  man  possess- 
ing ordinary  prudence  under  like  circumstances.  The  fact  that  the 
animal  at  the  time  it  eats  the  poison  may  have  been  prowling  or 
trespassing,  is  a  circumstance  to  be  considered  by  the  jur}^  in  de- 
termining whether  the  person  placing  the  poison  acted  with  ordi- 
nary prudence;  but  the  Court  cannot  charge  without  invading  the 
province  of  the  jurj-,  that  this  circumstance  was  sufficient  to  enable 
them  to  find  a  verdict  in  favor  of  the  defendant.  The  charge  of  the 
presiding  judge  was  not  in  accord  with  the  rule  hereinbefore  stated, 
and  was,  therefore,  erroneous,  in  my  opinion. 

The  members  of  this  Court  are,  however,  equally  divided  in  opinion, 
and  the  judgment  of  the  Circuit  Court  is  affirmed.^ 


KEEBLE  V.  HICKERINGILL 

Queen's  Bench.     1706 

11  East,  574,  note 

Action  upon  the  case.  Plaintiff  declares  that  he  was,  8th  Novem- 
ber in  the  second  year  of  the  Queen,  lawfully  possessed  of  a  close  of 
land  called  Minott's  Meadow,  el  de  quodam  vivario,  vocato  a  decoy 
pond,  to  which  divers  wild  fowl  used  to  resort  and  come:  and  the 
plaintiff  had  at  his  own  costs  and  charges  prepared  and  procured 
divers  decoy  ducks,  nets,  machines,  and  other  engines  for  the  decoy- 
ing and  taking  of  the  wild  fowl,  and  enjoyed  the  benefit  in  taking 
them:  the  defendant  knowing  which,  and  intending  to  damnify  the 
plaintiff  in  his  vivary,  and  to  fright  and  drive  away  the  wild  fowl 
used  to  resort  thither,  and  deprive  him  of  his  profit,  did,  on  the  8th  of 
November,  resort  to  the  head  of  the  said  pond  and  vivary,  and 
did  discharge  six  guns  ladcni  with  gunpowder,  and  witli  the  noise 
and  stink  of  the  gunpowder  did  drive  away  the  wild  fowl  then 
being  in  the  pond:  and  on  the  11th  and  12th  days  of  November 
the  defendant,  ivith  design  to  damnify  the  plaintiff,  and  fright  away 
the  wild  fowl,  did  place  himself  with  a  gun  near  the  vivary,  and 
there  did  discharge  tlie  said  gun  several  times  that  was  then  charged 
with  the  gunpowder  against  the  said  decoy  pond,  whereby  the  wild 

'  Accord:  McNary  v.  Chamberlain,  34  Conn.  384:  Webb  v.  Drake,  52  La. 
Ann.  290. 


I 


SECT.  I]  GENERAL   PRINCIPLES 


249 


fowl  were  frighted  away,  arul  did  forsake  the  said  pond.  Lpon  i»«jt 
guilty  pleaded,  a  verdict  was  found  for  the  plaintiff  and  £20  dania^J'S. 
Holt,  ( '.  .J.  I  am  of  oi)inion  that  this  action  doth  lie.  It  seems  to 
be  now  in  its  instance,  hut  is  not  new  in  the  reascjn  or  principle  of  it. 
For,  first,  thi.s  usiiiK  or  making  a  decoy  is  lawful.  Secondly,  this  em- 
ployment of  his  gromid  to  that  u.se  is  profitable  to  the  plaintiff,  a.'^  is 
the  skill  and  management  of  that  employment.  As  to  the  first,  every 
man  that  hath  a  property  may  employ  it  for  his  plea.sure  and  i)rofit, 
as  for  alluring  and  procuring  decoy  ducks  to  come  to  his  i)ond.  To 
learn  the  trade  of  .seducing  other  ducks  to  conic  there  in  order  to  Ixj 
taken  is  not  i)rohil)ited  either  l)y  the  law  of  the  land  or  the  moral 
law;  but  it  is  as  lawful  to  u.s(!  art  to  seduce  them,  to  catch  them,  and 
destroy  them  for  the  u.se  of  mankind,  as  to  kill  and  destroy  wild 
fowl  or  tame  cattle.  T\um  when  a  man  useth  his  art  or  his  skill  to 
take  them,  to  .sell  and  dispose;  of  for  his  profit;  this  is  his  trade;  ami 
he  that  hinders  another  in  iiis  trade  or  liveliiiood  is  liable  to  an  ac- 
tion for  so  hindering  him.  Why  otherwise;  are  scantlalous  words 
spoken  of  a  man  in  his  profession  actionable,  when  without  his  i)ro- 
fession  they  are  not  so?  Though  they  do  not  affect  any  damage, 
yet  are  they  mischievous  in  them.selves;  and  therefore  in  their  own 
nature  productive  of  damage;  and  therefore  an  action  lies  again.st 
him.  Such  are  all  words  tiiat  are  spoken  of  a  man  to  disparage  him 
in  his  trade,  tkat  may  bring  damage  to  him;  though  they  do  not 
charge  him  with  any  crime  that  may  make  him  obnoxious  to  punish- 
ment; ;us  to  .say  a  merchant  is  broken,  or  that  he  is  failing,  or  is 
not  able  to  pay  his  debts,  1  Roll.  GO,  1;  all  the  cases  there  put.  How 
much  more,  when  the  defendant  doth  an  actual  and  real  damage 
to  another  when  he  is  in  the  very  act  of  receiving  profit  by  his  em- 
ployment. Now  there  are  two  sorts  of  acts  for  doing  damage  to  a 
man's  employment,  for  whicli  an  action  lies;  the  one  is  in  resjx'ct  of 
a  man's  privilege;  the  other  is  in  respect  of  his  property.  In  that  of 
a  man's  franchise  or  privilege  wherein-  he  hath  a  fair,  market,  or 
ferry,  if  another  shall  u.se  the  like  lilierty,  though  out  of  his  limits, 
he  shall  be  liable  to  an  action;  though  by  grant  from  the  King.  Rut 
therein  is  the  ditTerence  to  be  taken  l)etween  a  liberty  in  which  the 
public  hath  a  benefit,  and  that  wherein  the  public  is  not  concerned. 
22  H.  6,  14,  15.  The  other  is  where  a  violent  or  malicious  act  is  done 
to  a  man's  occupation,  profession,  or  way  of  getting  a  liv(>liliood; 
there  an  action  lies  in  all  cases.  But  if  a  man  doth  him  damage  In- 
using  the  same  employment;  as  if  ^Tr.  Hickeringill  hafl  .set  up  an- 
other decoy  on  his  own  ground  ne.ir  the  plaintiff's,  and  that  had 
spoiled  the  custom  of  \ho  plaintiff,  no  action  would  lie,  becau.se  he 
had  as  much  liberty  to  mak(^  and  use  a  decoy  as  the  plaint itT.  This 
is  like  the  case  of  11  H.  4,  47.  One  schoolmaster  .sets  up  a  new  schm)! 
to  the  damage  of  an  ancient  school,  and  thereby  the  .scholars  are 
allured  from  the  old  school  to  come  to  his  new.  (The  action  was 
lu^ld  ther(>  not  to  lie.)    Rut  suppose  ^fr.  nick(M-ingill  should  lie  in  the 


250  LEGALITY   OF   ENDS   PURSUED  [CHAP.  V 

way  with  his  guns,  and  fright  the  boys  from  going  to  school,  and 
their  parents  would  not  let  them  go  thither;  sure  that  schoolmaster 
might  have  an  action  for  the  loss  of  his  scholars.  29  E.  3,  18.  A  man 
hath  a  market,  to  which  he  hath  toll  for  horses  sold :  a  man  is  bring- 
ing his  horse  to  market  to  sell:  a  stranger  hinders  and  obstructs 
hmi  from  going  thither  to  the  market:  an  action  lies,  because  it 
imports  damage.  Action  upon  the  case  lies  against  one  that  shall 
by  threats  fright  away  his  tenants  at  will,  9H.  7,  8;  21  H.  6,  31; 
9  H.  7,  7;  14  Ed.  4,  7;  Vide  Rastal.  662;  2  Cro.  423.  Trespass  was 
brought  for  beating  his  servant,  whereby  he  was  hindered  from  taking 
his  toll;  the  obstruction  is  a  damage,  though  not  the  loss  of  his 
service.^  .  .  . 


(B)    Trade  Competition.    Justification 

ANONYMOUS 

Common  Pleas.     1410 

Year  Book,  11  Hen.  IV,  fol.  47,  pi  21 

Two  masters  of  a  grammar  school  bring  an  action  of  trespass 
against  another  master,  and  count  that  whereas  the  presentment 
of  the  grammar  school  of  Gloucester,  time  whereof  memory  does 
not  run,  belonged  to  the  Prior  of  Lanton  near  Gloucester,  the  said 
Prior  had  made  presentment  to  the  said  plaintiffs  to  have  the  govern- 
ment of  the  said  schools  and  to  teach  the  children  and  others,  etc. 

'  Accord:  Carrington  i'.  Taylor,  11  East,  571;  Ibbottson  v.  Peat,  3  Hurl.  & 
Coltman,  644. 

In  an  interesting  case  reported  in  Dalloz,  97,  2,  335,  the  keeper  of  a  caf6  put 
up  a  notice  in  his  estabhshmcnt :  "Le  cafe  ne  sert  pas  de  byrrh."  "Byrrh"  is 
a  certain  beverage,  manufactured  by  a  particular  firm  and  patented.  The  owners 
of  it  sued  the  cafe  keeper  for  damages.  The  court  held  there  was  no  liability, 
because  there  was  no  proof  of  malevolence. 

In  Aikens  v.  Wisconsin,  195  U.  S.  194,  at  p.  204,  Holmes,  J.,  said:  "It  has  been 
considered  that,  prima  facie,  the  intentional  infliction  of  tem{)oral  damage  is 
a  cause  of  a(!tion,  which,  as  a  matter  of  substantive  law,  whatever  may  be  the 
form  of  pleading,  requires  a  justification  if  the  defendant  is  to  escape.  Mogul 
Steamship  Co.  v.  McGregor,  23  Q.  B.  D.  598,  G13;  s.  c,  [1892]  A.  C.  25.  If 
this  is  the  correct  mode  of  approach  it  is  obvious  that  justifications  may  vary  in 
extent  according  to  the  principle  of  policy  upon  which  they  are  founded,  and 
that  while  some,  for  instance,  at  common  law,  those  affecting  the  use  of  land, 
are  absolute,  Bradford  v.  Pickens,  [1895]  A.  C.  587,  others  may  depend  upon  the 
end  for  which  the  act  is  done.  Moran  v.  Dunphy,  177  Mass.  485,  487;  Plant 
V.  Woods,  176  Mas.s.  492;  Squires  v.  Wason  Manuf.  Co.,  182  Mass.  137,  140, 
141.  See  cases  cited  in  62  L.  R.  A.  673.  It  is  no  sufficient  answer  to  this  line  of 
tho\ight  that  motives  are  not  actionable  and  that  the  standards  of  the  law  are 
external.  That  is  true  in  detorriiining  what  a  man  is  bound  to  foresee,  but  not 
necessarily  in  determining  the  extent  to  which  he  can  justify  harm  which  he  has 
foreseen.  "  Quinn  v.  Leathern,  [1901]  A.  C.  495,  .524." 

So,  in  Skinner  «fe  Co.  v.  Shaw,  [1S93[  1  Ch.  413,  at  p.  422,  Lord  Bowen  said: 
"At  common  law  there  was  ii  cause  of   action  whenever  one  person  did  damage 


SECT.  I]  GENERAL    PUINCIPLES  251 

The  defendant  hud  sot  up  a  school  in  the  same  town  by  reason  wliereof 
while  the  plaintiffs  were  wont  to  take  for  a  child  for  the  quarter 
40  pence  or  2  shillinp;s  now  they  do  not  take  beyond  12  pence,  to 
the  dainaK<',  etc. 

Ilorlon  made  full  defense. 

TUisU'y.     His  writ  is  of  no  avail. 

Skrene.  There  is  a  good  acticjii  on  the  case,  and  the  plairjtiffs 
have  now  shown  sufficient  matter  liow  they  are  damaged,  where- 
fore, etc. 

Hankfoui)  [J.]  '  Dnmnwn  may  be  without  injuria.  As  if  I  have 
a  mill,  and  my  rjeighbor  sets  up  another  mill  so  that  the  profit  of 
my  mill  is  diminished,  I  have  no  action  against  him;  still  there  is 
damage  to  me,  which 

TmitMNc;  [('.  J.]'-  conceded;  and  said  that  teaching  childn'n  is 
a  spiritual  matter,  and  if  one  employs  a  master  in  his  house  to  teach 
his  children  there  will  be  damage  to  the  common  master  of  the 
town;  still  I  think  that  he  will  not  have  an  action. 

Skrene.  The  Master  of  Paul's  claims  that  there  should  not  be 
masters  in  the  whole  city  of  London  except  them. 

And  afterwards,  Horton  asked  whether  the  Court  would  take  cogni- 
zance of  the  case. 

Skrene.     You  are  too  late.     And  then 

Horlon  demurs  that  the  action  is  not  maintainable. 

Skrene.  Insomuch  as  we  will  aver  the  title  of  the  Prior  ii.s  above 
and  that  we  are  damaged  for  that  he  has  diverted  our  scholars  and 
also  where  we  were  accustomed  to  take  from  a  scholar  40  pence  or 
2  shillings  by  the  (juarter  now  we  do  not  take  beyond  12  pence  we 
demand  jutlgment  and  pray  our  damages. 

Hill  [J.]  '  The  action  fails  fundamentally  in  this  case  for  that 
the  plaintiffs  have  no  estate  but  a  ministry^  for  the  time  being,  and 
when  another,  who  is  also  po.'^.sc^ssed  of  the  faculty  which  the  plain- 
tiffs have,  comes  to  teach  the  children,  it  is  a  virtuous  and  charitable 

to  another  wilfully  and  intentionally,  and  without  just  cause  or  excuse."  See 
the  same  judge'.s  remarks  in  Mogul  Steam.ship  Co.  v.  McGregor,  L.  R.,  2'.i  (^  H.  D. 
598,  at  p.  ()13,  infra,  p.  'I'A. 

The  Ciorman  Civil  Code,  Art.  220,  provides  that  "the  exerci.^^e  of  a  right  is 
not  permitted  when  its  only  object  can  be  to  oau.se  injury  to  another." 

The  French  Courts  approach  the  subject  from  a  slightly  different  angle,  mak- 
ing illegal  "the  abusive  exerci.so  of  a  right."  For  an  interesting  criticism  of  this 
phnuse,  see  Phmiol,  Trait6  Ek'^mentaire  (4th  ed.),  vol.  2,  sees.  S70,  S71. 

'  William  Ilankford,  appointed  judge  of  the  Common  Pleas,  May  <).  l.'WS; 
ehief  justice  of  King's  Bench,  March  29,  1413.  See  Foss,  Judges  of  England,  V(.l. 
4,  p.  323. 

2  William  Thiming,  appointed  judge  of  the  Common  Pleas.  April  11.  13S.S; 
chief  ju.stice  of  the  Common  Pleas,  Jan.  1.5,  1396.  See  Foss,  Judges  of  England, 
vol.  4,  p.  209. 

»  Robert  Tlill.  or  Hull,  appointed  judge  of  the  Common  Pleas,  May  14,  \AOi^. 
See  Foss,  Judges  of  I\iigland,  vol.  4,  p.  .327. 

*  Some  manuscripts  have  "my.stery." —  Ed. 


252  LEGALITY   OF   ENDS    PURSUED  [CHAP.  V 

thing  and  a  convenience  to  the  people,  for  which  he  cannot  be  pun- 
ished by  our  law  wherefore,  etc. 

Thienixg  [C.  J.].  WTiether  the  Prior  could  have  such  present- 
ment of  the  school  or  not  this  Court  cannot  take  cognizance,  for  that 
the  teaching  of  children  is  a  spiritual  thing,  and  since  the  plaintiffs 
have  claimed  the  school  by  the  presentment  of  the  Prior  and  have 
founded  their  action  upon  this  which  is  accessory  and  depends  upon 
the  title  of  the  Prior,  which  is  the  principal  thing,  it  seems  that  this 
action  cannot  be  tried  in  this  Court. 

Skrene.  If  a  market  is  set  up  to  the  nuisance  of  my  market  I  shall 
have  an  assize  of  nuisance;  and  in  a  common  case  if  the  comers  to 
my  market  are  disturbed  or  beaten  whereby  I  lose  my  tolls,  I  shall 
have  a  very  good  action  of  trespass  on  my  case  —  also  here. 

Hankford  [J.].  It  seems  not;  for  that  in  your  case  j^ou  have  free- 
hold and  inheritance  in  the  market,  but  here  the  plaintiffs  have  no 
estate  in  the  schoolmastership,  etc.,  but  for  the  time  not  certain; 
and  it  would  be  against  reason  that  a  master  should  be  disturbed 
from  holding  school  where  he  pleased  unless  it  was  in  case  where  a 
University  was  incorporated  and  schools  founded  upon  ancient  time; 
and  in  case  of  a  mill  (as  I  said  before)  if  my  neighbor  sets  up  a  mill 
[and  if]  others  who  are  accustomed  to  go  to  my  mill  go  to  another 
mill  whereby  my  tolls  are  lost,  for  this  case  I  shall  not  have  action; 
but  if  a  miller  disturbs  the  way  of  passage  to  my  mill  or  does  such 
manner  of  nuisance  I  shall  have  an  action  such  as  the  law  gives. 

And  the  opinion  of  the  Court  was  that  the  writ  did  not  lie:  where- 
fore it  was  awarded  that  they  take  nothing,  etc.,  in  etc. 


THE  MOGUL  STEAMSHIP  CO.  v.  McGREGOR,  GOW  &  CO. 
Court  of  Appeal.     1889 
L.  R.  23  Q.  B.  D.  598 

The  plaintiffs  claimed  damages  for  a  conspiracy  to  prevent  them 
from  carrying  on  their  trade  between  London  and  China,  and  an 
injunction  against  the  continuance  of  the  alleged  wrongful  acts.  .  .  . 

BowEN,  L.  J.^  We  are  presented  in  this  case  with  an  apparent 
conflict  or  antinomy  between  two  rights  that  are  equally  regarded 
by  the  law  —  the  right  of  the  plaintiffs  to  be  protected  in  the 
legitimate  exorcise  of  their  trade,  and  the  right  of  the  defendants 
to  carry  on  their  business  as  seems  best  to  them,  provided  they 
commit  no  wrong  to  others.  The  plaintiffs  complain  that  the  de- 
fondants  have  crossed  the  lino  which  the  common  law  permits;  and 
inasmuch  as,  for  the  purposes  of  tiio  prescnit  case,  we  are  to  assume 
some  possible  damage  to  the  plaintiffs,  the  real  question  to  be  de- 

'  Only  the  opinion  of  Bowon,  L.  J.,  is  givon.  Fry,  L.  J.,  rondcrcd  a  ooncurring 
oi)iiii()ii  ;iM<l  liurd  I'lslicr,  M.  R.,  a,  dissent iii(i;  opinion.  The  decision  was  after- 
wards afhrrncd  in  the  House  of  Lords.    See  |1S<.)2|  A.  C  25.  —  Ed. 


SECT.  I]  GENERAL    PIUXCU'LE.S  253 

cided  is  whether,  on  sucli  an  iussiiinption,  the  defendants  in  the 
conduct  of  their  commercial  affairs  have  done  anything  that  is  un- 
justifiable in  hiw.  The  defeiuhmts  are  a  nunilx?r  of  shipowners  wh<j 
formed  themselves  into  a  leati;ue  or  conference  for  tin'  piiri)<)>e  of 
ultimately  keeping  in  their  own  luuuls  the  control  of  the  tea  car- 
riage from  certain  Chinese  ports,  and  for  tiie  purpose  of  driving  the 
plaintiffs  and  other  competitors  from  the  field.  In  order  to  succeed 
in  tiiis  ol)j(M't,  and  to  discourage  the  plaintiffs'  vessels  from  resorting 
to  thos(!  ports,  the  defendants  timing  the  "tea  harvest"  of  ISS,') 
combined  to  offer  to  the  local  shippers  very  low  freights,  with  a  view 
of  generally  reducing  or  "smashing"  rates,  and  thus  rendering  it 
unprofitable  for  the  plaintiffs  to  send  their  ships  thither.  They 
offered,  moreover,  a  rebate  of  o  per  cent  to  all  local  shippers  and 
agents  who  would  deal  exclusively  with  vessels  belonging  to  the 
Conference,  and  any  agent  who  broke  the  condition  was  to  forfeit 
the  entire  rebate  on  all  shipments  made  on  behalf  of  any  and  every 
one  of  his  principals  during  tlu^  whole  year  — a  forfeiture  of  rebate 
or  allowance  which  was  denominated  as  "ponal"  by  the  plaintiffs' 
counsel.  It  nmst,  however,  be  taken  as  established  that  the  rebate 
was  one  wHTchHie  defendants  need  never  have  allowed  at  all  to  their 
cTTstomel-.s.  It  must  also  be  taken  that  the  defendants  luul  no  per- 
sonal ill-will  to  the  plaintiffs,  nor  any  desire  to  liar  ii  them  except 
such  as  is  involved  in  the  wish  and  intention  to  discourage  by  such 
measures  the  plaintiffs  fro;n  sending  rival  vessels  to  such  ports.  The 
acts  of  which  the  plaintiffs  particularly  complained  were  as  follows: 
—  First,  a  circular  of  May  10,  18S5,  by  which  the  defendants  off(M-ed 
to  the  local  shippers  and  their  agents  a  bcm'fit  by  way  of  rebate  if 
they  would  not  deal  with  the  plaintiffs,  which  was  to  be  lost  if  this 
condition  was  not  fulfilled.    Secondly,  the  sending  of  special  ships  l 

to  Hankow  in  order  by  co:npetition  to  deprive  the  plaintiffs'  vessels     [ 
of  profital)le  freight.    Thirdly,  the  offer  at   Hankow   of  freights  at     I V  "^ 
a  leval  which  would  not  repay  a  shipowner    for  his  adventure,  in  rjo' 

order  to  "smash"  freights  and  frighten  the  plaintiffs  from  the  field. 
Fourthly,  pressure  put  on  the  defendants'  own  agents  to  induce 
them  to  ship  only  by  t\m  def(mdants'  vessels,  and  not  by  those  of 
the  plaintiffs.  It  is  to  be  observed  with  regard  to  all  the.se  acts  of 
which  complaint  is  made  that  they  were  acts  that  in  themselves 
could  not  be  said  to  be  illegal  unle.ss  made  so  by  the  object  with 
wliich,  or  the  combination  in  the  course  of  which,  they  were  done; 
and  that  in  realitv  what  is  complained  of  is  the  pursuing  of  trade 
competition  to  a  length  which  the  plaintiffs  consider  oppre.-^sive  and 
prejudicial  to  themselves.  We  were  invited  by  the  plaintiffs'  coim.sel  , 
to  accept  the  x>osition  fromTwliich  their  argument  started  —  tliat  '  1 
an  action  will  li(^  if  a  man  mnliciously  and  wrongfully  conducts  him- 
self .so  as  to  injure  another  in  that  other's  tradtv  Obscurity  resides 
in  the  language  used  to  state  this  proposition.  The  terms  "mali- 
ciously," "wrongfully,"  and  "injure"  are  words  all  of  which  have 


254 


LEGALITY   OF   ENDS   PURSUED 


[CHAP.  V 


accurate  meanings,  well  known  to  the  law,  but  which  also  have  a 
popular  and  less  precise  signification,  into  which  it  is  necessary  to 
see  that  the  argument  does  not  imperceptibly  slide.  An  intent  to 
"injure"  in  strictness  means  more  than  an  intent  to  h^m.  It  con- 
notes an  intfiiitjto  do  wrongful  harm •  "Maliciously,"  in  like  man- 
ner, means  and  implies  an  intention  to  do  an  act  which  is  wrongful, 
to  the  detriment  of  another.  The  term  "wrongful"  imports  in  its 
turn  the  infringement  of  some  right.  The  ambiguous  proposition 
to  which  we  were  invited  b}^  the  plaintiffs'  counsel  still,  therefore, 
leaves  unsolved  the  question  of  what,  as  between  the  plaintiffs  and 
defendants,  are  the  rights  of  trade.  For  the  purpose  of  clearness, 
I  desire,  as  far  as  possible,  to  avoid  terms  in  their  popular  use  so 
slippery,  and  to  translate  them  into  less  fallacious  language  where- 
ever  possible. 

The  English  law,  which  in  its  earlier  stages  began  with  but  an 
imperfect  line  of  demarcation  between  torts  and  breaches  of  con- 
tract, presents  us  with  no  scientific  analysis  of  the  degree  to  which 
the  intent  to  harm,  or,  in  the  language  of  the  civil  law,  the  animus 
vicino  nocendi,  may  enter  into  or  affect  the  conception  of  a  personal 
wrong;  see  Chasemore  v.  Richards,  7  H.  L.  C.  349,  at  p.  388.  All 
personal  wrong  means  the  infringement  of  some  personal  right. 
"It  is  essential  to  an  action  in  tort,"  say  the  Privy  Council  in  Rogers 
V.  Rajendro  Dutt,  13  Moore,  P.  C.  209,  "that  the  act  complained 
of  should  under  the  circumstances  be  legally  wrongful  as  regards 
the  party  complaining;  that  is,  it  must  prejudicially  affect  him  in 
some  legal  right;  merely  that  it  will,  however  directly,  do  a  man 
harm  in  his  interests,  is  not  enough."  What,  then,  were  the  rights 
of  the  plaintiffs  as  traders  as  against  the  defendants?  The  plain- 
tiffs had  a  right  to  be  protected  against  certain  kind  of  conduct; 
and  we  have  to  consider  what  conduct  would  pass  this  legal  line 
or  boundary.  Now,  intentionally  to  do  that  which  is  calculated 
in  the  ordinary  course  of  events  to  damage,  and  which  docs,  in  fact, 
damage  another  in  that  other  person's  property  or  trade,  is  action- 
able ifgbnewith^jjt  just  cause  or  excuse.  Such  intentional  action 
when  done  without  jusT'cause'oF excuse  is  what  the  law  calls  a  mali- 
cious wrong  (see  Bromage  v.  Prosser,  4  B.  &  C.  247;  Capital  and 
Counties  Bank  v.  Henty,  per  Lord  Blackburn,  7  App.  Cas.  741,  at 
p.  772).  The  acts  of  the  defendants  which  are  complained  of  here 
wore  intentional,  and  were  also  calculated,  no  doubt,  to  do  the  plain- 
tiffs damage  in  their  trade.  But  in  order  to  see  whether  tliey  were 
wrongful  we  have  still  to  discuss  the  question  whether  they  were 
done  without  any  just  cause  or  excuse.  Such  just  cause  or  excuse 
the  defendants  on  their  side  assert  to  be  found  in  their  own  positive 
right  (subject  to  certain  limitations)  to  carry  on  their  own  trade 
freely  in  the  mode  and  manner  that  best  suits  them,  and  which 
they  think  best  calculated  to  secure  their  own  .-idvantnge. 


I 


SECT.  I]  GENERAL   PRINCIPLES  255 

What,  then,  aro  the  limitations  wliidi  the  law  imposes  on  a  trader 
in  the  conduct  of  his  business  as  between  himself  and  other  trad<*rs? 
There  seem  to  be  no  burdens  or  restrictions  in  law  upon  a  trader 
which  arise  merely  from  the  fact  that  he  is  a  trader,  and  which  are 
not  e(}ually  laid  on  all  other  subjects  of  the  Crown.  His  rij^ht  to 
tTaxie_freely  is  a  right  wliich  tlu*  law  rccoiyiiicii  and  encoCiraguS,  but 
ifnS^one  which  places  him  at  no  special  disadvantage  as  compared 
with  others.  No  man,  whether  trader  or  not,  can,  however,  justify 
([amagTuK  Jinother  in  his  conunercial  business  by  fraud  or  misrep- 
resentation. Intimidation,  obstruction,  and  molestation  are  for- 
bidden; so  is  the  intentional  procurement  of  a  violation  of  individual 
rights,  contractual  or  other,  assuming  always  that  there  is  no  just 
cau.se  for  it.  The  intentional  driving  away  of  customers  by  shew  of 
violence:  Tarleton  /•.  M'C.awley,  Peak,  N.  P.  C  270;  the  obstruc- 
tion of  actors  on  the  stage  l)y  preconcerted  hissing:  CliiTord  ;•.  Bran- 
don, 2  Camp.  35S;  (Jregory  v.  Brunswick,  G  Man.  6c  (j.  205;  the 
disturbance  of  wild  fowl  in  decoys  by  the  firing  of  guns:  Carrington 
V.  Taylor,  11  Etist,  571,  and  Keei>le  r.  Ilickcringill,  II  East,  574,  n.; 
the  impeding  or  threatening  .servants  or  workmen:  (larret  v.  Taylor, 
Cro.  Jac.  567;  the  inducing  persons  und(T  personal  contracts  to 
break  their  contracts:  Bowen  v.  Hall,  6  i}.  B.  D.  333;  Lumley  v. 
Gye,  2  E.  &  B.  216;  all  arc  instances  of  such  forbidden  acts.  But 
the  defendants  have  been  guilty  of  none  of  these  acts.  They  have  •-r>.  1/1 
done  nothing  more  against  the  plaintitTs  than  pursue  to  the  bitter  \-^\ 
end  a  war  of  competition  waged  in  the  interest  of  their  own  trade.  '       a/^'^ 

To  the  argument  that  a  competition  so  pursued  ceases  to  have  a  ,1  .  '^>'"'^ 
just  cause  or  excuse  when  there  is  ill-will  or  a  personal  intention  to  ' 
harm,  it  is  sufficient  to  reply  (as  I  have  already  pointed  out)  that 
there  was  here  no  personal  intention  to  do  any  other  or  greater  harm 
to  the  plaintiffs  than  such  as  was  necessarily  involved  in  the  desire 
to  attract  to  the  defendants'  ships  the  entire  tea  freights  of  the 
ports,  a  portion  of  which  would  otherwise  have  fallen  to  the  plain- 
tiffs* share.  I  can  find  no  authority  for  the  doctrine  that  such  a 
commercial  motive  deprives  of  "just  cause  or  excuse"  acts  done  in 
the  course  of  trade  which  would  but  for  such  a  motive  be  justifiable. 
So  to  hold  would  be  to  convert  into  an  illegal  motive  the  instinct  of 
self-advancement  and  .self-protection,  which  is  the  very  incentive 
to  all  trade.  To  say  that  a  man  is  to  trade  freely,  but  that  he  is  to 
stop  short  at  any  act  which  is  calculated  to  harm  other  tradesmen, 
and  which  is  designed  to  attract  business  to  his  own  shop,  would  be 
a  strange  and  impossible  counsel  of  perfection.  But  we  were  told 
that  competition  cetises  to  be  \\\c  lawful  exercise  of  trade,  and  so 
to  be  a  lawful  excuse  for  what  will  harm  another,  if  carried  to  a 
length  which  is  not  fair  or  rea.sonable.  The  offering  of  reduced  rates 
by  the  dc^fendants  in  the  present  ciise  is  said  to  have  lx»en  "unfair." 
This  seems  to  assume  that,  apart  from  fnuid,  iiitimitlation.  molesta- 
tion, or  obstruction,  of  some  other  personal  right  in  rem  or  in  per- 


256  LEGALITY   OF   ENDS   PURSUED  [CHAP.  V 

sonam,  there  is  some  natural  standard  of  "fairness"  or  "reasonable- 
ness" (to  be  determined  by  the  internal  consciousness  of  judges 
and  juries)  beyond  which  competition  ought  not  in  law  to  go.  There 
seems  to  be  no  authority,  and  I  think,  with  submission,  that  there 
is  no  sufficient  reason  for  such  a  proposition.  It  would  impose  a 
novel  fetter  upon  trade.  The  defendants,  we  are  told  by  the  plain- 
tiffs' counsel,  might  lawfully  lower  rates  provided  they  did  not  lower 
them  beyond  a  "fair  freight,"  whatever  that  may  mean.  But  where 
is  it  established  that  there  is  any  such  restriction  upon  commerce? 
And  what  is  to  be  the  definition  of  a  "fair  freight"?  It  is  said  that 
it  ought  to  be  a  normal  rate  of  freight,  such  as  is  reasonably  remu- 
nerative to  the  shipowner.  But  over  what  period  of  time  is  the 
average  of  this  reasonable  remunerativeness  to  be  calculated?  All 
commercial  men  with  capital  are  acquainted  with  the  ordinary  ex- 
pedient of  sowing  one  year  a  crop  of  apparently  unfruitful  prices, 
in  order  by  driving  competition  away  to  reap  a  fuller  harvest  of 
profit  in  the  future;  and  until  the  present  argument  at  the  bar  it 
may  be  doubted  whether  shipowners  or  merchants  were  ever  deemed 
to  be  found  by  law  to  conform  to  some  imaginary  "normal"  stand- 
ard of  freights  or  prices,  or  that  Law  Courts  had  a  right  to  say  to 
them  in  respect  of  their  competitive  tariffs,  "Thus  far  shalt  thou 
go  and  no  further."  To  attempt  to  limit  English  competition  in  this 
way  would  probably  be  as  hopeless  an  endeavour  as  the  experiment 
of  King  Canute.  But  on  ordinary  principles  of  law  no  such  fetter 
on  freedom  of  trade  can  in  my  opinion  be  warranted.  A  man  is  bound 
not  to  use  his  property  so  as  to  infringe  upon  another's  right.  Sic 
iitere  tuo  ut  alienum  non  laedas.  If  engaged  in  actions  which  may 
involve  danger  to  others,  he  ought,  speaking  generally,  to  take  rea- 
sonable care  to  avoid  endangering  them.  But  there  is  surely  no  doc- 
trine of  law  which  compels  him  to  use  his  property  in  a  way  that 
judges  and  juries  may  consider  reasonable:  see  Chasemore  v.  Rich- 
ards, 7  H.  L.  C.  349.  If  there  is  no  such  fetter  upon  the  use  of  prop- 
erty known  to  the  Enghsh  law,  why  should  there  be  any  such  a 
fetter  upon  trade? 

It  is  urged,  however,  on  the  part  of  the  plaintiffs,  that  even  if  the 
acts  complained  of  would  not  be  wrongful  had  they  been  committed 
by  a  single  individual,  they  become  actionable  when  they  are  the 
result  of  concerted  action  among  several.  In  other  words,  the  plain- 
tiffs, it  is  contended,  have  been  injured  by  an  illegal  conspiracy.  .  .  . 
But  what  is  the  definition  of  an  illegal  combination?  It  is  an  agree- 
ment by  one  or  more  to  do  an  unlawful  act,  or  to  do  a  lawful  actJBy 
unlawful  means:  O'Connell  v.  The  Queen,  11  CI.  &  F.  155;  Reg.  v. 
Pamcll.  14  Cox,  Criminal  Cases,  508;  and  the  question  to  be  solved 
is  whether  there  has  been  any  such  agreement  here.  Have  the  de- 
fendants combined  to  do  an  unlawful  act?  Have  they  combined  to 
do  a  lawful  act  by  unlawful  means?  A  moment's  consideration  will 
be  sufficient  to  shew  that  this  new  inquiry  only  drives  us  back  to 


I 


1 


SECT.   I]  GENERAL    PRINCIPLES  257 

the  firclo  of  i|('liniti(jii.s  and  Ic^al  propositions  which  I  have  already 
traversed  in  the  previous  part  of  tliis  jiulf^ineiit.  The  urila\Ni"ul  act 
agreed  to,  it'  an^-,  between  the  dcfcinhints  must  have  Iweii  the  in- 
tentional doin^  of  some  act  ti)  the  detriment  of  tiic  plaintiffs'  busi- 
ness without  just  cause  or  excuse  Whether  there  was  any  such 
justification  or  excuse  for  the  defendants  is  the  old  (juestion  over 
again,  which,  so  far  as  regards  an  individual  trader,  has  Ix'en  al- 
ready solved.  The  only  differentia  that  can  exist  must  arise,  if  at 
all,  out  of  the  fact  that  the  acts  done  are  the  joint  acts  of  s<'veral 
capitalists,  and  not  of  one  capitalist  only.  The  next  point  is  whether 
the  means  adopted  were  unlawful.  The  means  adopted  were  com- 
petition carried  to  a  l)itter  end.  Whether  such  means  were  unlaw- 
ful is  in  like  manner  nothing  but  the  old  discu.ssion  which  I  have 
gone  through,  and  which  is  ncnv  revived  under  a  .second  head  of 
in(iuiry,  except  .so  far  as  a  coml)ination  of  capitalists  difTerentiates 
the  ciuse  of  acts  jointly  done  by  them  from  similar  acts  done  by  a 
single  man  of  capital.  But  I  find  it  impossible  nn'.self  to  acquiesce 
in  the  vi(>w  that  the  English  law  places  any  such  restriction  on  the 
coml)ination  of  capital  as  would  be  involved  in  the  rec:\Knition  of 
such  a  distinction.  If  so,  one  rich  cai)italist  may  innocently  carry 
competition  to  a  length  which  would  become  unlawful  in  the  case 
of  a  syndicate  with  a  joint  capital  no  larger  than  his  own,  and  one 
individual  merchant  m:iy  lawfully  do  that  which  a  firm  or  a  part- 
neiship  may  not.  What  limits,  on  such  a  theory,  would  be  impo.sed 
by  law  on  the  competitive  action  of  a  joint-stock  company  limited, 
is  a  problem  which  might  well  puzzle  a  casuist.  The  truth  is,  that 
the  combination  of  capital  for  purpo.ses  of  trade  and  comix'tition  is 
a  very  different  thing  from  such  a  combination  of  .several  persons 
against  one,  with  a  view  to  harm  him,  as  falls  under  the  head  of  an 
indictable  conspiracy.  There  is  no  just  cause  or  excuse  in  the  lat- 
ter chiss  of  cas(\s.  There  is  such  a  just  cause  or  excuse  in  the  former. 
There  are  cases  in  which  the  very  fact  of  a  coml)ination  is  evidence 
of  a  design  to  do  that  which  i.s  hurtful  without  just  cau.se  —  is  evi- 
dence-— tojTSP  fi  teclmical  e.\i)re?>^iiUL^^  <^'f  malice.  But  it  is  per- 
fcctlylegitimat e ,  as  it  si  ( ms  to  me,  to  combine  capital  for  all  the 
mere  purposes  of  trade  for  which  capital  may,  apart  from  combina- 
tion, be  legitimately  u.sed  in  trade.  To  limit  combinations  of  capital, 
when  u.sed  for  purposes  of  competition,  in  the  manner  propo.sod  by 
the  argument  of  the  plaintiffs,  would,  in  the  present  day,  Ix^  impos- 
sible—  would  l)e  only  another  method  of  attempting  to  set  bouml- 
aries  to  the  tides.  Leg;d  |)uzzles  whicii  migiit  well  distract  a  theori.st 
may  easily  be  conceived  of  imaginary  conflicts  between  the  .selfish- 
ness of  a  group  of  individuals  and  the  obvious  well-lx'ing  of  other 
memiiers  of  the  community.  Would  it  be  an  indictal)le  conspiracy 
to  agree  to  drink  up  all  the  water  from  a  common  spring  in  a  time 
of  drought:  to  buy  up  by  preconciTted  action  all  the  provisions  in 
a  market  or  district  in  times  of  scanitv:    see  Hex  r.  Waddington, 


258  LEGALITY    OF    ENDS    PURSUED  [CHAP.  V 

1  East,  143;  to  combine  to  purchase  all  the  shares  of  a  company 
against  a  coming  settling-day;  or  to  agree  to  give  away  articles  of 
trade  gratis  in  order  to  withdraw  custom  from  a  trader?  May  two 
itinerant  match-vendors  combine  to  sell  matches  below  their  value 
in  order  by  competition  to  drive  a  third  match-vendor  from  the 
street?  In  cases  like  these,  where  the  elements  of  intimidation, 
molestation,  or  the  other  kinds  of  illegality  to  which  I  have  alluded 
are  not  present,  the  question  must  be  decided  b}'  the  application  of 
the  test  I  have  indicated.  Assume  that  what  is  done  is  intentional, 
and  that  it  is  calculated  to  do  harm  to  others.  Then  comes  the 
question.  Was  it  done  with  or  without  "just  cause  or  excuse"?  If 
it  was  bona  fide  done  in  the  use  of  a  man's  own  property,  in  the  exer- 
cise of  a  man's  own  trade,  such  legal  justification  would,  I  think, 
exist  not  the  less  because  what  was  done  might  seem  to  others  to  be 
selfish  or  unreasonable:  see  the  summing-up  of  Erie,  J.,  and  the 
judgment  of  the  Queen's  Bench  in  Reg.  v.  Rowlands,  17  Q.  B.  671. 
But  such  legal  justification  would  not  exist  when  the  act  was  merely 
done  with  the  intention  of  causing  temporal  harm,  without  refer- 
ence to  one's  own  lawful  gain,  or  the  lawful  enjoyment  of  one's  own 
rights.  The  good  sense  of  the  tribunal  which  had  to  decide  would 
have  to  analyse  the  circumstances  and  to  discover  on  which  side  of 
the  line  each  case  fell.  But  if  the  real  object  were  to  enjoy  what  was 
one's  own,  or  to  acquire  for  one's  self  some  advantage  in  one's  prop- 
ertj'^  or  trade,  and  what  was  done  was  done  honestly,  peaceably, 
and  without  any  of  the  illegal  acts  above  referred  to,  it  could  not, 
in  my  opinion,  properly  be  said  that  it  was  done  without  just  cause 
or  excuse.  One  may  with  advantage  borrow  for  the  benefit  of  traders 
what  was  said  by  Erie,  J.,  in  Reg.  v.  Rowlands,  17  Q.  B.  671,  at  p. 
687,  n.,  of  workmen  and  of  masters:  "The  intention  of  the  law  is 
at  present  to  allow  either  of  them  to  follow  the  dictates  of  their  own 
will,  with  respect  to  their  own  actions,  and  their  own  property;  and 
either,  I  believe,  has  a  right  to  study  to  promote  his  own  advantage, 
or  to  combine  with  others  to  promote  their  mutual  advantage." 

Lastly,  we  are  asked  to  hold  the  defendants'  Conference  or  asso- 
ciation illegal,  as  being  in  restraint  of  trade.  The  term  "illegal" 
here  is  a  misleading  one.  Contracts,  as  they  are  called,  in  restraint 
of  trade,  are  not,  in  my  opinion,  illegal  in  any  sense,  except  that  the 
law  will  not  enforce  them.  It  does  not  prohibit  the  making  of  such 
contracts;  it  merely  declines,  after  they  have  been  made,  to  recog- 
nise their  validity.  The  law  considers  the  disadvantage  so  imposed 
upon  the  contract  a  sufficient  shelter  to  the  public.  The  language 
of  Crompton,  J.,  in  Hilton  v.  Eckersley,  6  E.  <fe  B.  47,  is,  I  think, 
not  to  be  supported.  No  action  at  common  law  will  lie  or  ever  has 
lain  against  any  individual  or  individuals  for  entering  into  a  con- 
tract merely  bccau.se  it  is  in  restraint  of  trade.  Lord  Eldon's 
equity  decision  in  Cousins  v.  Smith,  13  Ves.  542,  is  not  very  intel- 
ligible, even  if  it  be  not  open  to  the  somewhat  personal  criticism 


SECT.  I]  GENERAL    I'RINCIPLES  259 

passed  on  it  by  Lord  Campbell  in  his  Lives  of  the  Chancellors. 
If  indeed  it  could  be  plainly  proved  that  the  mere  formation  of 
"conferences,"  "trusts,"  or  "associations"  such  as  these  wen*  al- 
ways necessarily  injurious  to  the  public  —  a  view  which  involves, 
perhaps,  the  disputable  assumption  tiiat,  in  ;i  country  of  free  trade, 
and  one  which  is  not  under  the  iron  rcf^imc  of  statutory  monojxjlies, 
such  confederations  can  ever  be  really  successful  —  and  if  the  evil 
of  thcin  were  not  sufficiently  dealt  with  by  the  common  l:iw  rul<*, 
whicii  iield  such  agreements  to  be  void  as  tiistinct  from  holdinj^  them 
to  be  criminal,  there  might  be  some  reason  for  thinkiuK  that  the 
common  law  ougiit  to  discover  within  its  arsenal  of  sound  com- 
mon-sense principles  some  further  remedy  commensurat<'  with  the 
mischief.  Neitiier  of  these  assumptions  are,  to  my  mind,  at  all  evi- 
dent, nor  is  it  the  province  of  judges  to  mould  and  stretch  the  law 
of  conspiracy  in  order  to  keep  pace  with  the  calculations  of  political 
economy.  If  peaceable  and  honest  combinations  of  capital  for  pur- 
po.ses  of  trade  competition  are  to  be  struck  at,  it  must,  I  think,  l)e 
by  legislation,  for  I  do  not  see  that  they  are  under  tlie  ban  of  the 
common  law. 

In  the  result,  I  agree  with  Lord  Coleridge,  C.  J.,  and  difTer,  with 
regret,  from  the  Master  of  the  Rolls.  The  sul)stance  of  my  view 
is  this,  that  comi)etition,  however  severe  and  egotistical,  if  unat- 
tended by  circumstances  of  dishonesty,  intimidation,  molestation, 
or  such  illegalities  as  I  have  above  referred  to,  gives  rise  to  no 
cause  of  action  at  common  law.  I  myself  should  deem  it  to  be  a 
misfortune  if  w'e  were  to  attempt  to  prescribe  to  the  business  world 
how  honest  and  peaceable  trade  was  to  be  carried  on  in  a  case  where 
no  such  illegal  elements  as  I  have  mentioned  exLst,  or  were  to  adopt 
some  standard  of  judicial  "reasonableness,"  or  of  "normal"  prices,  '^^^ 
or  "fair  freigiits,"  to  which  commercial  adventurers,  otherwise  in-  \ 
nocent,  were  l)ound  to  conform. 

In  my  opinion,  accordingly,  this  appeal  ought  to  be  dismi.ssed 
with  costs.  Appeal  dismissed} 

TUTTLE  V.  BUCK 
Supreme  Court  of  ]\Ii\xesot.\.     1909 

107  Minn.  145 

Action  in  the  District  Court  for  Wright  county  to  recover  $10,(K.K) 
damages.  Defendant  demurred  to  tlie  complaint  on  the  ground  it 
did  not  state  a  cause  of  action.  From  an  order,  Buckham,  .1.,  over- 
ruling the  demurrer,  defendant  appealed.     Affirmed. 

This  appeal  was  fioni  an  order  overruling  a  general  demurrer  to 
a  complaint  in  whicii  tlie  plaintitT  alleged: 

That  for  more  than  ten  years  last  past  he  has  be(>n  and  still  is  a 

'  See  Citizens'  LiRht,  Heat  &  Power  Co.  v.  Montgomery  Light  A  Water  Power 
Co.,  171  Fed.  553,  558-501. 


260  LEGALITY   OF   ENDS   PURSUED  [CHAP.  V 

barber  by  trade,  and  engaged  in  business  as  such  in  the  village  of 
Howard  Lake,  Minnesota,  where  he  resides,  owning  and  operating 
a  shop  for  the  purpose  of  his  said  trade.   That  until  the  injury  herein- 
after complained  of  his  said  business  was  prosperous,  and  plaintiff 
was  enabled  thereby  to  comfortably  maintain  himself  and  family 
out  of  the  income  and  profits  thereof,  and  also  to  save  a  considerable 
sum  per  annum,  to  wit,  about  $800.    That  the  defendant,  during 
the  period  of  about  twelve  months  last  past,  has  wrongfully,  unlaw- 
fully, and  maliciously  endeavored  to  destroy  plaintiff's  said  business, 
and  compel  plaintiff  to  abandon  the  same.    That  to  that  end  he  has 
persistently  and  systematically  sought,  by  false   and  malicious  re- 
ports and  accusations  of  and  concerning  the  plaintiff,  by  personally- 
soliciting  and  urging  plaintiff's  patrons  no  longer  to  employ  plain- 
tiff, by  threats  of  his  personal  displeasure,  and  by  various  other 
unlawful  means  and  devices,  to  induce,  and  has  thereby  induced, 
many  of  said  patrons  to  withhold  from  plaintiff  the  employment 
by  them  formerly  given.   That  defendant  is  possessed  of  large  means, 
and  is  engaged  in  the  business  of  a  banker  in  said  village  of  Howard 
Lake,  at  Dassel,  Minnesota,  and  at  divers  other  places,  and  is  nowise 
interested  in  the  occupation  of  a  barber;  yet  in  the  pursuance  of  the 
wicked,  malicious,  and  unlawful  purpose  aforesaid,  and  for  the  sole 
and  only  purpose  of  injuring  the  trade  of  the  plaintiff,  and  of  ac- 
complishing his  purpose  and  threats  of  ruining  the  plaintiff's  said 
business  and  driving  him  out  of  said  village,  the  defendant  fitted  up 
and  furnished  a  barber  shop  in  said  village  for  condu(;ting  the  trade 
of  barbering.    That  failing  to  induce  any  barber  to  occupy  said  shop 
on  his  own  account,  though  offered  at  nominal  rental,  said  defend- 
ant, with  the  wrongful  and  malicious  purpose  aforesaid,  and  not 
otherwise,  has  during  the  time  herein  stated  hired  two  barbers  in 
succession  for  a  stated  salary,  paid  by  him,  to  occupy  said  shop^ 
and  to  serve  so  many  of  plaintiff's  patrons  as  said  defendant  has 
been  or  may  be  able  by  the  means  aforesaid  to  direct  from  plaintiff's 
shop.    That  at  the  present  time  a  barber  so  employed  and  paid  by 
the  defendant  is  occupying  and  nominally  conducting  the  shop  thus 
fitted  and  furnished  by  the  defendant,  without  paying  any  rent 
therefor,  and  under  an  agreement  with  defendant  whereby  the  in- 
come of  said  shop  is  required  to  be  paid  to  defendant,  and  is  so  paid 
in  partial  return  for  his  wages.    That  all  of  said  things  were  and  are 
done  by  defendant  with  the  sole  design  of  injuring  the  plaintiff,  and 
of  destroying  his  said  business,  and  not  for  the  purpose  of  serving 
any  legitimate  interest  of  his  own.   That  by  reason  of  the  gi-eat  wealth 
and  prominence  of  the  defendant,  and  the  personal  and  financial 
influence  consequent  thereon,  he  has  by  the  means  aforesaid,  and 
through  other  unlawful  means  and  devices  by  him  employed,  ma- 
terially injured  the  business  of  the  plaintiff,  has  largely  reduced  the 
income  and  profits  thereof,  and  intends  and  threatens  to  destroy  the 
same  altogether,  to  plaintiff's  damage  in  the  sum  of  $10,000. 


SECT.  I]  GENERAL    PItlN'CIPLES  _'(jl 

Elliott,  J.  (after  stating  tho  facts  as  alxjve). 

It  has  been  said  that  tiic  hiw  deals  only  with  externals,  and  that 
a  lawful  act  cannot  be  made  the  foundation  of  an  action  lx*cause  it 
was  done  with  an  evil  motive.  In  Allen  r.  Flood,  [IS9S)  A.  C.  1,  151, 
Lord  Watson  said  that,  except  with  re^^ard  to  crime.s,  tho  law  do<*s 
not  take  intcj  account  motives  as  const  it  utinj^  im  element  of  civil 
wrong.  In  Mayor  r.  Pickle.s,  [IS95J  A.  ('.  ~)H7,  Lord  Halsbury  stated 
that  if  the  act  was  lawful,  "however  ill  the  motive?  might  bo,  he 
had  a  right  to  do  it''  in  liiiycroft  /•.  Tayntor,  OS  \'t.  210.  35  Atl. 
53,  33  L.  R.  A.  225,  54  Am.  St.  SS2,  the  court  said  that,  "when  One 
exerci.ses  a  legal  right  only,  the  motive  which  actuates  him  is  im- 
material.*' In  Jenkins  v.  Fowler,  24  Pa.  St.  308,  Mr.  Justice  Black 
said  that  "malicious  motives  make  a  bad  act  worse,  but  thej-^  can- 
not make  that  wrong  which,  in  its  own  essence,  is  lawful."  This 
language  was  quoted  in  Holm  Mfg.  Co.  v.  Ilollis,  54  Minn.  223, 
233,  55  N.  W.  1119,  21  L.  K.  A.  337,  40  Am.  St.  319,  and  in  sub- 
stance in  Ertz  v.  Produce  Exchange,  79  ^linn.  140,  143,  81  N.  W. 
737,  4S  L.  R.  A.  90,  79  Am.  St.  433.  See  also  2  Cooley,  Torts  (3d 
ed.),  1505;  Auburn  v.  Dougla.ss,  9  N.  Y.  444. 

Such  generalizations  are  of  little  value  in  determining  concrete 
cases.  They  may  state  the  truth,  but  not  the  whole  truth.  Each 
word  and  phrase  used  therein  may  require  definition  and  limitation. 
Thus,  before  we  can  apply  Judge  Black's  language  to  a  particular 
case,  we  must  determine  what  act  is  "in  its  own  es.sence  lawful." 
What  did  Lord  Halsbury  mean  by  the  words  "lawful  act"  ?  What 
is  meant  by  "exercising  a  legal  right"  ?  It  is  not  at  all  correct  to 
say  that  the  motive  with  which  an  act  is  done  is  always  immaterial, 
providing  the  act  itself  is  not  unlawful.  Xvnnerous  illustrations  of 
the  contrary-  will  l)e  fountl  in  the  civil  as  well  as  the  criminal  law. 

We  do  not  intend  to  enter  upon  an  elaborate  discussion  of  the  sub- 
ject, or  become  entangled  in  the  subtleties  connected  with  the  words 
"malice"  and  "malicious."  \\'e  are  not  able  to  accept  without 
limitations  the  doctrine  above  referred  to,  l)ut  at  this  time  content 
ourselves  with  a  brief  reference  to  some  general  principles. 

It  must  be  remembered  that  the  common  law  is  the  result  of 
growth,  and  that  its  d(>velopment  has  been  determined  by  the  social 
needs  of  the  community  whicii  it  governs.  It  is  the  resultant  of  con- 
flicting social  forces,  and  those  forces  which  are  for  the  time  dom- 
inant leave  their  impress  upon  the  law.  It  is  of  judicial  origin,  and 
seeks  to  establish  doctrin(\s  and  rules  for  the  determination,  protec- 
tion, and  enforcement  of  legal  rigiits.  Manifestly  it  must  change 
as  society  chang(>s  and  new  rights  are  recognized.  To  1)0  an  efliciont 
instrument,  ami  not  a  more  abstraction,  it  mu.st  gradually  adapt 
its'lf  to  changed  conditions.  Necessarily  its  form  and  substance 
have  been  greatly  alT(>cted  by  prevalent  economic  theories. 

I'^or  generations  there  has  been  a  practical  agreement  upon  the 
proposition  that  competition  in  trade  and  business  is  desirai)le,  and 


262  LEGALITY   OF   ENDS   PURSUED  [CIL\P.  V 

this  idea  has  found  expression  in  the  decisions  of  the  courts  as  well 
as  in  statutes.  But  it  has  led  to  grievous  and  manifold  wrongs  to 
individuals,  and  many  courts  have  manifested  an  earnest  desire  to 
protect  the  individual  from  the  evils  which  result  from  unrestrained 
business  competition.  The  problem  has  been  to  so  adjust  matters 
as  to  preserve  the  principle  of  competition  and  yet  guard  against  its 
abuse  to  the  unnecessary  injury  to  the  individual.  So  the  principle 
that  a  man  may  use  his  own  property  according  to  his  own  needs 
and  desires,  while  true  in  the  abstract,  is  subject  to  many  limitations 
in  the  concrete.  Men  cannot  always,  in  civilized  society,  be  allowed 
to  use  their  own  property  as  their  interests  or  desires  may  dictate 
without  reference  to  the  fact  that  they  have  neighbors  whose  rights 
-are  as  sacred  as  their  own.  The  existence  and  well-being  of  society 
require  that  each  and  every  person  shall  conduct  himself  consistently 
with  the  fact  that  he  is  a  social  and  reasonable  person.  The  purpose 
for  which  a  man  is  using  his  own  property  may  thus  sometimes  de- 
termine his  rights,  and  applications  of  this  idea  are  found  in  Still- 
water Water  Co.  v.  Farmer,  89  Minn.  58,  93  N.  W.  907,  60  L.  R.  A. 
875,  99  Am.  St.  541,  Id.,  92  Minn.  230,  99  N.  W.  882,  and  Barclay 
V.  Abraham,  121  Iowa,  619,  96  N.  W.  1080,  64  L.  R.  A.  255,  100  Am. 
St.  365. 

Many  of  the  restrictions  which  should  be  recognized  and  enforced 
result  from  a  tacit  recognition  of  principles  which  are  not  often  stated 
in  the  decisions  in  express  terms.  Sir  Frederick  Pollock  notes  that 
not  many  years  ago  it  was]  difficult  to  find  any  definite  authority 
for  stating  as  a  general  proposition  of  English  law  that  it  is  wrong 
to  do  a  wilful  wrong  to  one's  neighbor  without  lawful  justification 
or  excuse.  But  neither  is  there  any  express  authority  for  the  gen- 
eral proposition  that  men  must  perform  their  contracts.  Both  prin- 
ciples, in  this  generality  of  form  and  conception,  are  modern  and 
there  was  a  time  when  neither  was  true.  After  developing  the  idea 
that  law  begins,  not  with  authentic  general  principles,  but  with  the 
enumeration  of  particular  remedies,  the  learned  writer  continues: 
"If  there  exists,  then,  a  positive  duty  to  avoid  harm,  much  more 
must  there  exist  the  negative  duty  of  not  doing  wilful  harm,  subject, 
as  all  general  duties  must  be  subject,  to  the  necessary  exceptions. 
The  three  main  heads  of  duty  with  which  the  law  of  torts  is  con- 
cerned, namely,  to  abstain  from  wilful  injury,  to  respect  the  prop- 
erty of  others,  and  to  use  due  diligence  to  avoid  causing  harm  to 
others,  are  all  alike  of  a  comprehensive  nature."  Pollock,  Torts 
(8th  ed.),  p.  21.  He  then  quotes  with  approval  the  statement  of 
Lord  Bowen  that  "at  common  law  there  was  a  cause  of  action 
whenever  one  person  did  damage  to  another,  wilfully  and  inten- 
tionally, without  just  cause  or  excuse."  .  .  . 

It  is  freely  conceded  that  there  are  many  decisions  contrary  to 
this  view;  but,  when  carried  to  the  extent  contended  for  by  the  ap- 
pellant, we  think  they  arc  unsafe,  unsound,  and  illy  adapted  to 


I 


SECT.  I]  GENEHAL    l'Kl.\(  IPLES  203 

modern  coiiditions.  To  divert  to  one's  self  the  customers  of  :i  busi- 
ness rival  by  the  offer  of  goods  at  lower  prices  is  in  general  a  legit- 
imate mode  of  serving  one's  own  interest,  and  justifiable  as  fair 
competition.  Hut  wlien  a  man  starts  an  opprjsition  place  of  business, 
not  for  the  sake  of  profit  to  liimsclf,  but  rcganlless  of  loss  to  him- 
self, and  for  the  sole  purpose  of  driving  his  competitor  out  of  business, 
and  with  the  intention  of  himself  retiring  upon  the  aceomplishnu'nt 
of  his  malevolent  purjiose,  he  is  guilty  of  a  wanton  wrong  and  an 
actional)le  tort.  In  such  a  case  he  would  not  Iw  exercising  his  legal 
right,  or  doing  an  act  which  can  be  judged  sejiarately  from  the  mo- 
tive which  actuated  him.  To  call  such  conduct  comjx'tition  is  a 
perversion  of  terms.  It  is  simply  the  application  of  force  without 
legal  justification,  which  in  its  moral  (juality  may  be  no  l>etter  than 
highway  robbery. 

Nevertheless,  in  the  opinion  of  the  writer  this  complaint  is  insuffi- 
cient. It  is  not  daimetl  that  it  states  a  cause  of  action  for  slander. 
No  question  of  conspiracy  or  combination  is  involved.  Stripped  of 
the  adjectives  and  the  statement  that  what  was  done  was  for  the 
sole  purpose  of  injuring  the  plaint ilT,  and  not  for  tiie  jjuri)o.se  of  serv- 
ing a  legitimate  purpose  of  the  defendant,  the  complaint  .states  facts 
which  in  themselves  amount  only  to  an  ordinary  everyday  business 
transaction.  There  is  no  allegation  tiiat  the  defendant  was  inten- 
tionally nnniiiig  tiie  I)usiness  at  a  financial  loss  to  himself,  or  that 
after  driving  tiie  plaintiff  out  of  business  the  defeiulant  do.sed  up  or 
intended  to  close  up  his  shop.  From  all  that  appears  from  the  com- 
plaint he  may  have  opened  the  ])arber  shop,  energetically  sought 
business  from  his  accpiaintances  and  the  customers  of  the  plaintiff, 
and  as  a  result  of  iiis  enterj)rise  and  commaiul  of  capital  obtained  it,  . 
with  the  result  that  the  plaintiff,  from  want  of  capital,  actpiaintance, 
or  enterprise,  was  unable  to  stand  the  competition  and  was  thus 
driven  out  of  business.  The  facts  thus  alleged  do  not,  in  my  opinion, 
in  themselves,  without  n^ference  to  tiie  way  in  wiiicii  tiiey  are  cliar- 
acterized  l)y  tiie  pleader,  tend  to  siiow  a  malicious  and  waiitDU  wrong 
to  the  plaintiff. 

A  majority  of  tiie  justices,  iiowever,  are  of  tiie  opinion  tliat,  on 
the  principle  declared  in  tiie  foregoing  ojiinion,  tiie  complaint  states 
a  cause  of  ai-tion,  and  the  order  is  therefore  affirmed. 

Affirmed. 

Jagg.\rd,  J.,  dissents. 


264  LEGALITY    OF    ENDS    PURSUED  [CHAP.  V 

Section  2.     Strikes  to  Secure  Higher  Wages,  Shorter  H^urs, 
or  Improved  Working  Conditions       -^     v^'-tx'^ 

liARGES  FURNITURE  CO.  v.  AMALGAMAT^  WDOI^   4 
WORKERS'  LOCAL  UNION 

Supreme  Court  of  Indiana.     1905 

165  hid.  421 

Hadley,  J.  Appellant  brought  this  suit  against  the  appellees, 
the  Amalgamated  Woodworkers'  Union  No.  131  of  Evansville,  an 
imincorporated  labor  organization,  and  its  members,  to  enjoin  them, 
such  members  being  on  a  strike,  from  picketing,  intimidating,  and 
otherwise  interfering  with  the  plaintiff''s~  eniployees  and  bijsiness. 
The  complaint,  in  two  paragraphs,  was  answered  by  a  general  denial. 
There  was  a  trial,  special  findings,  and  injunction  awarded  against 
fourteen  of  the  appellees,  and  finding  and  decree  in  favor  of  the  re- 
maining appellees,  including  said  amalgamated  woodworkers'  union. 

The  real  question  presented  by  the  record  is  the  refusal  of  the 
court  to  enjoin  the  defendant  union  and  all  its  members  from  picket- 
ing and  otherwise  intermeddling  with  appellant's  business.^  .  .  . 

Do  the  findings  show  a  conspiracy  to  injure  the  plaintiff?  A  con- 
spiracy is  defined  to  be  "a  combination  of  two  or  more  persons, 
by  some  concerted  action,  to  accomplish  some  criminal  or  unlawful 
purpose;  or  to  accomplish  some  purpose,  not  in  itself  criminal  or 
unlawful,  by  criminal  or  unlawful  means."  Commonwealth  v.  Hunt 
(1842),  4  Mete.  Ill,  123,  38  Am.  Dec.  346;  Spies  v.  People  (1887), 
122  111.  1,  213,  12  N.  E.  865,  17  N.  E.  898,  3  Am.  St.  320;  3  Green- 
leaf,  Evidence  (16th  ed.),  sec.  89. 

It  is  disclosed  by  the  special  findings  that  the  woodworkers'  union 
of  Evansville  had  about  six  hundred  members,  all  employed  in  the 
ten  furniture  factories  in  said  city,  and  of  the  appellees  nine  were 
non-members  and  the  others  were  members  of  the  union.  On  March 
17,  1903,  at  a  meeting  of  the  union,  it  was  resolved  by  a  free  vote 
of  the  members  —  330  to  17  —  that  all  members  should,  on  April 
1,  1903,  as  a  body,  discontinue  their  work  at  their  several  places  of 
employment,  unless  meanwhile  the  employers,  including  the  plain- 
tiff, should  agree  to  an  advance  in  wages,  to  a  shorter  work-day, 
and  to  furnish  a  scale  of  prices  to  be  paid  piece  workers.  All  of  the 
appellees,  except  the  non-members,  either  voted  for  the  resolution 
or  subsequently  ratified  it.  By  order  of  the  union,  notice  of  the 
demands,  signed  by  the  president  and  secretary,  was,  on  March  21, 
delivered  to  the  plaintiff.     On  April  1,  the  demands  upon  the  em- 

'  That  portion  of  the  opinion  holding  that  no  action  could  be  maintained 
against  an  unincorporated  society  or  association,  and  tliat  therefore  "the  court 
committed  no  error  in  denying  an  injunction  against  the  appellee  the  Amal- 
gamated Woodworkers'  Local  Union  No.  l.'il,"  is  oitiittcd.  —  Kn. 


SECT.   H]  STRIKES    FOR    RETTER    CONDITIONS  203 

ploycrs  not  having  l>i'<'n  t^nuitcd,  all  tlic  plaintiff's  omployoos,  ex- 
cept about  twenty,  non-nicinbcrs  of  the  union,  each  one  acting 
voluntarily  in  coiucrt  with  others  and  in  pursuance  of  the  a^ree- 
juent  and  vote,  (juit  thiii  (•in])loynient  and  left  the  plaintiff's  factory. 

Soon  after  the  strike  was  inaut^urated,  the  union,  with  the  par- 
ti(;ipation  or  subsecjuent  ratihcation  of  the  other  apix-llees,  organized 
a  picket  system,  whereby  pickets  were  regularly  and  daily  main- 
tained in  th(;  vicinity  of  all  the  factories  affected  by  the  strike.  .  .  . 
The  pickcits  were  uniformly  instructed  by  the  president  and  other 
officers  of  the  union  biiforo  going  on  duty  to  take  not<'  of  tho.se  en- 
tering and  leaving  the  factory,  to  avscertain  their  names  and  places 
of  residence,  and,  as  far  as  they  could,  by  fair  and  peaceful  means, 
to  influence  those  remaining  at  work  to  (juit,  and  prevent  new  men 
from  ent(!ring  to  take  the  places  of  thos<' on  strike.  .  .  .  The  jK'ace- 
able  policy  adopted  l)y  the  union,  and  given  as  instructions  to  the 
pickets,  was  adopted  antl  given  in  good  faith,  and  the  defendants 
iiulividually  anil  collectively  as  members  of  the  union,  at  all  times 
intendcul  to  effectuate  the  purposes  of  the  strike  by  lawful  means, 
and  not  by  viohuice,  threats  or  intimidation.  .   .  . 

On  the  7th  and  8th  of  April,  and  on  subsequent  days,  certain  of 
plaintiff's  employees,  on  their  way  home  from  work,  were  stopped 
and  followed  )\v  groups  of  men,  including  in  some  one  or  more  of  the 
groups  th(»  def(Midants  John  (lebliardt.  Harry  Thomas,  .John  Kramer, 
John  Mandel,  John  Siemers,  Robert  Fisher,  Charles  Lipkhig,  Frank 
Barnes,  Henry  Pittineier,  Frank  Clebhardt,  John  Stock,  P>ed  Wil- 
helm  and  Leamler  Cook,  who  in  one  instance  assaulted  said  em- 
ployees, and  in  all  instances  called  said  employees  ofTensive  names, 
and  cursed  and  threatened  them  with  violence  if  they  did  not  (piit 
work  in  plainti!f's  factory.  On  many  other  occasions  others  of  the 
defendants  stopped  and  visited  the  plaintiff's  employees,  and  argued 
with  them  the  propriety  of  (flitting  work;  but  such  argument  and 
conversations  were  held  in  a  fair  and  friendly  spirit,  and  devoid  of  any 
form  of  inti;uidation  or  otfen.se.  The  withtlrawal  of  the  plaintiff's 
workmen  and  its  inability  to  secure  others  to  take  their  places  so 
seriously  impaired  the  productive  capacity  of  the  factory  that  the 
plaintiff  was  unable  to  fill  the  orders  it  had  accepted,  and  it  was 
thereby  damaged,  and  had  reasonable  grounds  to  expect  further  and 
continuing  damages.  The  employees  who  remained  at  work  in  plain- 
tiff's factory,  except  a  few  who  afterwards  quit  on  account  of  the 
strike  and  its  consequences,  are  still  employed  therein.  M  the  time 
of  the  strik(>  part  of  the  plaintiff's  workmen  were  employed  with- 
out any  contract  as  to  duration  of  .service,  and  the  others  were  em- 
ployed by  the  piece.  It  was  not  shown  in  evidence  that  the  violence 
and  intimidation  mentioned  above  was  ever  reported  to  the  union, 
or  that  the  union  had  knowledge  of  any  such  proc(>edings. 

The  court  stated  as  conclusions  of  law:  (1)  That  the  plaintiff 
is  entitled  to  an  injunction  as  prayed   against  the  defendants  hist 


266  LEGALITY   OF   ENDS   PURSUED  [CHAP.  V 

above  named;  and  (2)  plaintiff  is  not  entitled  to  an  injunction 
against  the  defendant  Amalgamated  Woodworkers'  Local  Union 
No.  131,  nor  against  any  of  the  defendants  whose  names  are  not  set 
out  in  the  findings. 

All  combinations  are  not  conspiracies.  It  is  fundamental  under 
our  form  of  government  that  all  citizens  in  the  race  of  life  have  a 
free  and  equal  chance;  that  one  may  pursue  the  path  he  chooses 
and  do  whatever  he  deems  best  for  himself,  so  long  as  he  does  not 
infringe  upon  the  rights  of  another  exercising  a  like  and  equal  free- 
dom. Every  absolute  right  has  its  limits,  and  to  the  extent  of  those 
limits  it  is  the  correlative  duty  of  every  other  person  to  respect  and 
refrain  from  obstructing  by  force,  fraud,  intimidation,  or  any  other 
artificial  means.  It  is  the  invasion  of  another's  rights  that  con- 
stitutes a  legal  wrong  and  gives  a  basis  for  damages.  A  tradesman, 
singly  or  in  combination  wit-h  others,  may  lawfully  advertise  his 
goods,  undersell,  solicit,  and  win  the  customers  of  his  rival,  know- 
ing that  he  is  thereby  ruining  the  latter's  business.  This  is  competi- 
tion, and  is  what  the  law  commends  as  "the  life  of  trade."  In  such 
case  one  loses  his  property  by  the  acts  of  his  neighbor,  but  it  is  dam- 
num absque  injuria.  But  the  contest  must  be  a  fair  and  honest  one. 
If  the  same  tradesman,  singly  or  with  others,  advertises  his  goods, 
imdersells,  solicits,  and  wins  away  the  customers  of  his  rival  by 
false  representation,  intimidation  or  artifice  —  not  to  better  him- 
self, but  to  injure  his  rival  —  he  has  committed  an  actionable  wrong. 
1  Eddy,  Combinations,  sec  262,  and  note;  Jackson  v.  Stanficld 
(1894),  137  Ind.  592,  23  L.  R.  A.  588. 

Another  principle:  Whatever  one  man  may  do,  all  men  may  do, 
and  what  all  may  do  singly  they  may  do  in  concert,  if  the  sole  pur- 
pose of  the  combination  is  to  advance  the  proper  interests  of  the 
members,  and  it  is  conducted  in  a  lawful  manner.  Curran  v.  Galen 
(1897),  152  N.  Y.  33,  46  N.  E.  297,  37  L.  R.  A.  802,  57  Am.  St.  496; 
Macauley  Bros.  v.  Tierney  (1895),  19  R.  I.  255,  33  Atl.  1,  37  L.  R. 
A.  455,  61  Am.  St.  770;  1  Eddy,  Combinations,  sec.  523;  Clem- 
mitt  V.  Watson  (1895),  14  Ind.  App.  38. 

It  is  illegal  under  all  circumstances  for  cither  the  employed  or 
employer  to  violate  a  contract,  and,  in  the  absence  of  existing  eon- 
tracts,  employees  have  the  same  right  to  strike,  or  cease  working  in 
a  body,  that  the  employer  has  to  dismiss  them  in  a  body.  It  may, 
therefore,  be  said  that  employees,  under  no  contractual  restraint, 
may  lawfully  combine,  and  by  prearrangement  quit  their  employ- 
ment in  a  body,  for  the  purpose  of  securing  from  their  employers 
an  advance  in  wages,  shorter  hours,  or  any  other  legitimate  benefit, 
even  though  they  know  at  the  time  that  such  action  will  be  attended 
with  injury  and  damage  to  the  business  of  their  employer,  provided 
the  strike  is  carried  on  in  a  lawful  manner  —  that  is  in  a  manner 
free  from  force,  intimidation  and  false  representation.  1  Eddy, 
Combinations,   sees.    521-523;    Gray   v.   Building   Trades   Council 


I 


SECT.  II]  STRIKES    FOR    BETTER    CONDITION'S  2G7 

(190:i),  01  Miiiii.  171,  170,  07  X.  W.  663,  63  L.  R.  A.  703,  103  Am. 
St.  477;  Wabash  K.  Co.  v.  Hunnahnii  (1903),  121  Vod.  563,  56S; 
Stato  V.  SUK-kford  (1904),  77  Conn.  227,  oS  All.  769;  National 
Protective  Assn.  v.  Cununing  (1902),  170  N.  Y.  315,  63  X.  K.  369, 
59  L.  R.  A.  135,  SS  Am.  St.  64S;  Longshore  Printin^'  Co.  r.  HowrW 
(i:  94),  26  Ore.  527,  3H  Pac.  .547,  2S  L.  R.  A.  401,  46  Am.  St.  WO; 
Arthur  v.  Oakes  (1894),  63  Fed.  310,  11  C.  C.  A.  209,  25  L.  R.  A. 
414;  Ames  v.  Union  Pac.  R.  Co.  (1N94),  62  Fed.  7;  Thoma.s  v.  Cin- 
cinnati, etc.,  R.  Co.  (1S94),  62  Fed.  803;  Krdman  r.  Mitclwll  (1903), 
207  Pa.  St.  70,  56  Atl.  327,  63  L.  R.  A.  534,  99  Am.  St.  7H3;  3  Cur- 
rent Law,  p.  72();  I^ay,  Contractual  Lim.,  33S,  37S;  Creenhood, 
PuMic  Policy,  650;  Wood,  Ma.ster  and  Servant  (2(1  ed.),  sec.  241, 
Beach,  Monopolies  and  Industrial  Trusts,  sec.  102. 

Tlie  findinj^  of  the  court  is  tliat  fourteen  members  of  the  union, 
whose  names  are  set  out,  were  guilty  of  various  acts  of  intimidation 
and  violence,  not  while  .serving  a.s  pickets,  but  while  lounging  in 
the  street,  and  as  against  the.se  the  application  for  injunction  was 
sustained,  but  as  ;igainst  the  otlier  defendants  and  memlMTs  of  the 
union  the  omri  finds  tliat  tluy,  as  individuals,  and  collectively  a.s 
meml)ers  of  the  union,  at  all  ti:nes  intended  to  effectuate  the  oljjects 
of  the  strike  by  peaceful  means,  and  without  violence,  threats,  in- 
timidation or  other  unlawful  methods,  and  .so  far  as  the  findings 
show  th<'v  continued  to  carry  out  tlieir  peaceful  policy.  The.se  facts, 
under  tlie  autiiorities  above  cited,  characterize  the  combination  and 
concert  of  the  defendants  in  striking  as  lawful  and  not  amenai)le 
to  injunction. 

That  fourteen  of  the  six  hundred  members  of  the  union  did  dis- 
regard the  express  instructions  and  declared  policy  of  the  union  to 
conduct  the  strike  peacefully,  and  of  their  own  initiative  indulged 
in  acts  of  disorder  calculated  to,  a;fid  did  in  fact,  intimidate  the 
plaintiff's  employees,  is  not  of  itself  sufficient  to  condemn  the  union 
as  a  body.  The  strike  being  properly  conceived  and  conducted  by 
the  great  majority  of  members,  its  purpose  will  not  be  defeated  by 
the  unlawful  conduct  of  a  few  rowdies  and  law-breakers  that  may 
be  found  among  them.  "Where  a  combination  or  association  is 
innocent  in  its  incc^j^tion,"  says  a  recent  author,  "liut  is  afterwards 
perverted  to  unlawful  ends,  only  those  participating  in  the  perver- 
sion are  held  to  be  conspirators."  1  Eddy,  Combinations,  sec.  368; 
Carew  v.  Rutherford  (1870),  106  Mass.  1,  10;  Commonwealth  v. 
Hunt  (1842),  4  Mete.  Ill,  38  Am.  Dec.  346.  .355;  Union  Pac.  R. 
Co.    V.  Ruef  (1902),  120  Fed.  102.   .   .   . 

The  law,  having  granted  workmen  the  right  to  strike  to  .secure 
better  conditions  from  their  employers,  grants  them  also  the  u.«ic  of 
tho.se  means  and  agencies,  not  inconsistent  with  the  rights  of  others, 
that  are  necessary  to  make  the  strikt^  (>ff(^ctiv(\  This  embraces  the 
right  to  support  their  contest  by  argument,  ix^rsuasion,  and  such 
favors  and  accommodations  as  thev  have  witliin  tlieir  control.    The 


268  LEGALITY    OF    ENDS    PURSUED  [CHAP.  V 

law  will  not  deprive  endeavor  and  energj^  of  their  just  reward,  when 
exercised  for  a  legitimate  purpose  and  in  a  legitimate  manner.  So, 
in  a  contest  between  employees  and  employers  on  the  one  hand  to 
secure  higher  wages,  and  on  the  other  to  resist  it,  arguments  and 
persuasion  to  win  support  and  cooperation  from  others  are  proper 
to  either  side,  provided  they  are  of  a  character  to  leave  the  persons 
solicited  feeling  at  liberty  to  comply  or  not,  as  they  please.^  .  .  . 
Judgment  afiirmed. 


Section  3.    Strikes  to  Secure  Increased  Opportunity  of  Employment 

PICKETT  V.  WALSH 
Supreme  Judicial  Court  of  Massachusetts.     1906 

192  Mass.  572 

LoRiNG,  J.  .  .  .  The  bill  was  brought  to  enjoin  the  defendants 
from  combining  and  conspiring  to  interfere  with  the  plaintiffs  in 
pursuing  their  trade  of  brick  and  stone  pointers.  The  purpose  of 
the  bill  as  stated  in  the  prayers  for  relief  was  to  enjoin  the  defend- 
ants ...  (3)  from  combining  and  conspiring  to  interfere  with  the 
said  complainants,  or  any  of  them,  in  the  practice  of  their  trade 
and  occupation,  or  to  prevent  them  from  obtaining  further  em- 
ployment thereat.^ 

The  defendants  were  the  officers  of  two  unincorporated  brick- 
layers' unions,  to  wit,  Unions  No.  3  and  No.  27,  and  of  one  stone 
masons'  union,  to  wit.  Union  No.  9.  .  .  .  The  individual  defendants 
were  one  Driscoll,  the  walking  delegate  of  the  Bricklayers'  Union 
No,  3,  one  Walsh,  the  walking  delegate  of  the  Stone  Masons'  Union 
No.  9,  and  other  persons  who  were  officers  of  those  two  unions. 

It  appears  from  the  evidence  that  the  trade  of  brick  and  stone 
pointing  is  a  trade  which,  in  the  neighborhood  of  the  city  of  Boston 
at  any  rate,  has  been  carried  on  to  som(^  extent  as  a  separate  trade 
for  nearly  if  not  quite  on(>  himdrod  years.  It  further  appears  that 
there  are  now  some  forty-five  men  engaged  in  that  trade  in  the 
vicinity  of  that  city. 

The  trade  of  a  brick  or  a  stone  pointer  consists  in  going  over  a 
building  (generall}'  when  it  is  first  erected)  to  clean  it  and  to  put  a 
finish  on  the  mortar  of  the  joints.  Apparently  in  the  city  of  Wor- 
cester, and  to  some  extent  in  the  city  of  Boston,  this  work  of  point- 
ing is  done  by  bricklayers  and  stone  masons. 

The  dispute  which  gave  rise  to  the  suit  now  before  us  had  its  origin 
in  a  set  of  nilos  ndopted  in  January,  1905,  l)y  th(^  Bricklayers'  and 

'  Thiit  j)or1i(>ii  <if  the  opinion  lioldinji  that  peaceful  pi('k(^tinK  is  in  no  sense 
illo^ral  is  oinittcid.  —  Ki). 

2  C)nly  that  part,  of  the  prayer  for  relief  wliich  relates  to  the  third  cause  of 
action  is  given.  —  Ed. 


I 


SECT.  Ill]  STRIKES   TO   SECURE    EMPLOYMENT  269 

Masons'  International  Union  of  America,  to  which  the  two  unions 
here  in  question  were  subordinate.  This  set  of  rules  contained  a 
provision  that  bricklaying  masonry  should  consist  (initr  alia)  of 
"all  pointinj;  and  clcaniiif^  brick  walls,"  and  that  stone  nuwonry 
should  consist  (inter  (did)  of  the  "cleaning  anil  pointiiij^  rjf  stone 
work."  The  practical  working  of  the  princijjles  of  brick  and  stone 
masonry  as  defined  in  these  rules  was  left  to  the  subordinate 
unions.  .  .  . 

There  w:us  an  executive  conunittee  of  the  two  unions.  <  )n  .July 
28,  190.'),  this  executive  cominitt(K'  voteil  "that  b<'ginnirig  Septem- 
ber IS,  1905,  no  member  of  the  Hricklayers'  and  Masons'  unions 
of  Boston  and  vicinity,  will  work  on  any  building  where  the  con- 
tractor will  not  af^n^o  to  have  the  i)oiiitirit!;  done  by  bricklayers  or 
masons." 

This  action  of  the  executive  committee  was  formally  adopted  by 
the  Bricklayers'  Union  No.  3,  and  seems  to  have  been  informally 
adopted  by  the  Stone  Miusons'  Union  No.  9.  In  pursuance  thereof 
the  followinp;  circular  letter  w;is  issued:  "The  Bricklayers'  and 
Masons'  Unions  of  Boston  and  vicinity  have  votecl  that  no  brick- 
layer or  mason  will  work  for  any  firm  or  contractor  who  will  not 
employ  bricklayers  or  ma.sons  to  do  the  pointing;  of  brick,  terra 
cotta  and  stone  m;usonrv.  This  action  to  go  into  effect  SeptemlKT 
18,  1905." 

In  September,  1905,  L.  D.  Willciitt  and  Son  as  general  contrac- 
tors were  erecting  (among  other  buildings)  a  stone  building  on  the 
corner  of  Massachusetts  Avenue  and  Boylston  Street  in  Boston. 
On  the  eighteenth  day  of  that  month,  Mr.  L.  D.  Willcutt  of  that 
firm  w;xs  notified  tliat  if  he  did  not  discharge  the  pointers  who  were 
working  for  his  firm  in  pointing  that  building  all  the  masons  and 
bricklayers  working  for  his  firm  on  other  buildings  in  Bo.ston  (all 
of  wliom  were  union  men)  would  strike.  Thereupon  he  suspended 
the  work  which  w;is  being  done  by  the  pointers  on  the  building  on 
the  corner  of  Massachusetts  Avenue  and  Boylston  Street.  This 
evidence  was  admitted  to  show  that  there  was  a  general  scheme 
that  where  pointing  wiis  given  to  any  one  beside  union  bricklayers 
and  stone  masons  then*  would  be  a  strike.   .   .   . 

This  bill  was  filed  in  the  Superior  Court  on  Xovemb(>r  21,  1905. 
It  seems  to  have  come  on  for  hearing  on  December  5,  1905.  As  we 
have  said,  the  evidence  was  taken  by  a  commi.ssioner,  a  final  decree 
in  favor  of  the  plaintiffs  on  all  three  grounds  was  made  on  Decem- 
l)er  11,  without  any  special  fiii(h'iigs  of  fact,  and  th(>  case  is  here  on 
appeal  from  that  decree. 

It  appeared  from  the  testimony  of  Parker  V.  Soule  fan  officer  of 
the  \j.  P.  Soule  and  Son  Co.)  that  it  was  cheaper  to  make  a  con- 
tract with  pointers  for  the  work  of  pointing  and  cleaning  than  to 
employ  stone  masons  and  l)ricklayei-s  to  do  that  work.  It  appeared 
from  other  evidence  that  the  wages  of  a  bricklayer  or  stone  mjison 


270  LEGALITY   OF   ENDS   PUBSUED  [CHAP.  V 

were  fifty-five  cents  an  hour,  while  pointers  are  paid  three  dollars 
for  a  day  of  eight  hours,  or  thirty-seven  and  one-half  cents  an  hour. 
It  further  appeared  from  Mr.  Soule's  testimony  that  he  preferred 
to  give  the  work  to  the  pointers  because  in  cleaning  a  building  acid 
has  to  be  used,  and,  if  the  acid  is  used  to  excess,  stains  are  caused 
which  in  some  instances  it  is  impossible  to  ''get  out";  and  that  he 
did  not  think  that  the  bricklayers  and  stone  masons  were  competent 
to  use  these  acids.  He  also  preferred  to  give  the  work  to  the  pointers 
because  the  work  which  is  done  by  the  pointers  usually  is  done  by 
contract,  in  which  case  the  general  contractor  who  employs  the  point- 
ers is  relieved  from  responsibility  on  account  of  accidents  which 
may  occur  because  of  the  fact  that  the  work  is  done  on  a  swinging 
stage,  at  times  at  great  heights.  Again  it  appeared  from  the  evi- 
dence that  L.  P.  Soule  and  Son  Co.  were  not  the  only  contractors 
who  thought  that  they  got  better  work  at  a  smaller  cost  and  with 
less  Hability  by  making  a  contract  with  stone  pointers  for  the  doing 
of  this  work  than  by  employing  stone  masons  and  bricklayers  to 
do  it.  .  .  . 

There  was  evidence  that  at  the  interview  between  Driscoll  and 
Mr.  Willcutt,  Mr.  Willcutt  told  Driscoll  that  he  did  not  believe 
that,  when  there  were  twelve  hundred  men  in  the  union  and  thirty 
pointers  outside,  all  this  fuss  was  being  made  to  get  the  pointers' 
work  for  the  union  men;  that  he  thought  it  was  "simply  a  question 
of  dictation  to  us";  and  on  Mr.  Willcutt's  asking  him  (Driscoll) 
"Do  you  really  want  it  or  do  you  want  to  drive  the  men  out  of  busi- 
ness?" Driscoll  smiled  and  said :  "  That  is  a  charitable  way  of  look- 
ing at  it." 

There  seem  to  be  three  causes  of  action  upheld  by  the  decree.*  .  .  . 

Finally,  the  plaintiffs  sought  to  be  protected  against  a  strike  by 
the  defendants  in  order  to  get  the  work  of  pointing  for  the  members 
of  their  unions.  .  .  . 

We  will  consider  first  the  last  of  the  three  causes  of  action. 

The  question,  so  far  as  this  the  third  cause  of  action  goes  (apart 
from  a  question  of  fact  which  we  will  deal  with  later  on),  is  whether 
the  defendant  unions  have  a  right  to  strike  for  the  purpose  for  which 
they  struck;  or,  to  put  it  more  accurately  and  more  narrowly,  it  is 
this:  Is  a  union  of  bricklayers  and  stone  masons  justified  in  striking 
to  force  a  contractor  to  employ  them  by  the  day  to  do  cleaning  and 
I)()inting  at  higher  wages  than"  pointers  are  paid,  where  the  con- 
tractors wish  to  make  contracts  with  the  pointers  for  such  work  to 
be  done  by  the  piece  because  they  think  they  get  better  work  at  loss 
cost  with  no  lial)ility  for  accidents,  and  where  the  pointers  wish  to 
make  contracts  for  that  work  with  the  contractors  on  terms  satis- 
factory to  them? 

'  Thn  first  and  second  rausos  of  action  doalt  with  what  amountod  to  a  second- 
ary l)f)ycott.  Only  that  part  of  the  opinion  which  deals  with  the  third  cause  of 
action  is  given.  —  Ed. 


SECT,  in]  STRIKES   TO   SECURE    EMPLOYMENT  271 

III  other  words,  we  have  t(j  deal  with  om-  <jf  tlio  great  and  press- 
ing questions  growing  out  of  the  existence  of  the  powerful  combina- 
tions, sometimes  of  capital  and  sometimes  of  labor,  which  have 
been  instituted  in  recent  years  where  their  actions  come  into  con- 
flict with  the  interests  of  individuals.  The  c(jmbination  in  tin*  ca.sc 
at  bar  is  a  combination  of  workmen,  and  the  confiict  is  Ix-tween  a 
labor  union  on  the  one  hand  and  several  unoiganized  lalxjrers  on  the 
other  hand. 

It  is  only  in  recent  years  tli.it  these  great  and  powerful  combina- 
tions have  made  their  appearance,  and  the  limits  to  wiiieli  they 
may  go  in  enforcing  their  demands  are  far  from  l)eiiig  settle<|. 

It  is  settled  however  that  laborers  have  a  right  to  organic?  a.s 
labor  imions  to  promote  their  welfare. 

Further,  there  is  no  (piestion  of  the  general  right  of  a  labor  union 
to  strike. 

On  thc-()tlu;r  hand  it  is  settled  that  some  strikes  by  laljor  unioji^       \ 

The  right  of  laborers  to  organize  unions  and  to  utilize  such  or- 
ganizations by  instituting  a  strike  is  an  exercise  of  the  conunon  law 
right  of  every  citizen  to  pursue  his  calling,  whether  of  labor  or 
business,  as  he  in  his  judgment  thinks  tit.  It  is  pointed  out  in  Carew 
V.  Rutherford,  lOti  M:iss.  1,  14,  that  in  the  earlier  days  of  the  colony 
the  government  undertook  to  control  the  comluct  of  labor  and  busi- 
ness to  some  extent,  but  that  later  this  policy  of  regulation  was 
abandoned  and  all  citizens  were  left  free  to  pursue  their  calling, 
whether  of  labor  or  business,  as  seemed  to  them  best.  .  .  . 

This  right  of  one  or  more  citizens  to  pursue  his  or  their  calling 
as  he  or  they  see  fit  is  limit eil  by  the  existence  of  the  same  right  in 
all  other  citizens.  .  .  . 

We  now  have  arrived  at  the  point  where  a  labor  union,  being 
an  organization  brought  about  by  the  exercise  on  the  part  of  its 
memb(M-s  of  tin;  right  of  every  citizen  to  pursue  his  calling  as  he 
thinks  best,  is  limited  in  what  it  can  do  by  the  existence  of  the  same 
right  in  each  and  every  other  citizen  to  pursue  his  and  their  calling 
as  he  or  they  think  best. 

In  atldition  to  the  limitation  thus  put  on  labor  unions  there  is  a 
fact  vvhicii  puts  a  further  limitation  on  what  acts  a  labor  union  can 
legally  do.  That  is  the  increase  of  power  which  a  combination  of 
citizens  has  over  the  individual  citizen.  Take  for  example  the  jxiwer 
of  a  labor  union  to  compel  by  a  strike  compliance  with  its  demamls. 
Speaking  genei'ally  a  strik(^  to  be  successful  means  not  only  coercion 
and  compulsion  but  coercion  and  compulsion  which,  for  practical 
purposes,  are  irresistible.  A  successful  strike  by  laborers  means,  in 
many  if  not  in  most  cases,  that  for  practical  purposes  the  strikers 
have  such  a  control  of  the  labor  which  the  employ(T  must  have  that 
he  has  to  yield  to  tli(Mr  demands.  A  single  individual  may  well  l>e 
left  to  take  his  chances  in  a  struggle  with  another  indiviilual.     Hut 


272  LEGALITY   OF   ENDS   PURSUED  [CHAP.  V 

in  a  struggle  with  a  number  of  persons  combined  together  to  fight 
an  individual  the  individual's  chance  is  small,  if  it  exists  at  all.  It 
is  plain  that  a  strike  by  a  combination  of  persons  has  a  power  of 
coercion  wliich  an  individual  does  not  have.  .  .  . 

These  being  the  general  principles,  we  are  brought  to  the  question 
of  the  legality  of  the  strike  in  the  case  at  bar,  namely,  a  strike  of 
bricklayers  and  masons  to  get  the  work  of  pointing,  or,  to  put  it 
more  accurately,  a  combination  by  the  defendants,  who  are  brick- 
layers and  masons,  to  refuse  to  lay  bricks  and  stone  where  the  point- 
ing of  them  is  given  to  others.  The  defendants  in  effect  say  we 
want  the  work  of  pointing  the  bricks  and  stone  laid  by  us,  and  you 
must  give  us  all  or  none  of  the  work. 

The  case  is  one  of  competition  between  the  defendant  unions 
and  the  individual  plaintiffs  for  the  work  of  pointing.  The  work  of 
pointing  for  which  these  two  sets  of  workmen  are  competing  is  work 
which  the  contractors  are  ol)liged  to  have.  Cne  peculiarity  of  the 
case  therefore  is  that  the  fight  here  is  necessarily  a  triangular  one. 
It  necessarily  involves  the  two  sets  of  competing  workmen  and  the 
contractor,  and  is  not  confined  to  the  two  parties  to  the  contract, 
as  is  the  case  where  workm.en  strike  to  get  better  wages  from  their 
employer  or  other  conditions  which  are  better  for  them.  In  this 
respect  the  case  is  like  IMogul  Steamship  Co.  v.  McGregor,  23  Q. 
B.  D.  598;  s.  c.  on  appeal,  [1892]  A.  C.  25. 

The  right  which  the  defendant  unions  claim  to  exercise  in  carry- 
ing their  point  in  the  course  of  this  competition  is  a  trade  advantage, 
namely,  that  they  have  labor  which  the  contractors  want,  or,  if 
you  please,  cannot  get  elsewhere;  and  they  insist  upon  using  this 
trade  advantage  to  get  additional  work,  namely,  the  work  of  point- 
ing the  bricks  and  stone  which  they  lay.  It  is  son'.ewhat  like  the 
advantage  which  the  owner  of  back  land  has  when  he  has  bought 
the  front  lot.  Ho  is  not  bound  to  sell  them  separately.  To  be  sure 
the  right  of  an  individual  owner  to  sell  both  or  none  is  not  decisive 
of  the  right  of  a  labor  union  to  combine  to  refuse  to  lay  bricks  or 
stone  unless  they  are  given  the  job  of  pointing  the  bricks  laid  by 
them.  There  are  things  which  an  individual  can  do  which  a  com- 
bination of  individuals  cannot  do.  But  having  regard  to  the  right 
on  which  the  defendants'  organization  as  a  labor  union  rests,  the 
correlative  duty  owed  by  it  to  others,  and  the  limitation  of  the 
defendants'  rights  coming  from  the  increased  power  of  organiza- 
tion, we  are  of  opinion  tliat  it  was  within  the  rights  of  these  unions 
to  compete  for  the  work  of  doing  the  pointing  and,  in  the  exercise 
of  their  right  of  competition,  to  refuse  to  lay  bricks  and  set  stone 
unless  they  were  given  the  work  of  pointing  them  when  laid.  See 
in  this  connection  Plant  v.  Woods,  170  Mass.  492,  502;  Berry  v. 
Donovan,  188  Mass.  353,  357. 

The  result  to  which  that  conclusion  brings  us  in  the  case  at  bar 
ought  not  to  be  passed  by  without  consideration. 


I 


SECT.   Ill] 


STHIKES   TO   SECURE    EMPLOYMENT 


273 


The  result  is  harsh  on  the  contractors,  who  prefer  to  give  the  \v<jrk 
to  the  pointers  because  (1)  the  pointers  do  it  hy  contract  (in  which 
cas(!  the  contractors  esca[Xi  the  haljihty  incident  to  the  relation  of 
employer  and  employee);  because  (2)  the  contractors  think  that  the 
pointers  do  the  work  better,  and  if  not  well  done  the  buildings  may 
be  permanently  injured  by  acid;  and  finally  (3)  Ix'caas*;  they  get 
from  the  pointers  lx'tt«r  work  with  less  lial)ility  at  a  smaller  cost. 
Again,  so  far  :us  the  pointei-s  (who  cannot  lay  brick  or  stone)  are  con- 
cerned, the  result  is  disiustrous.  But  all  that  the  hibor  unions  have 
done  is  to  say  you  must  employ  us  for  all  the  work  or  none  of  it. 
They  have  not  said  that  if  you  employ  the  pointers  you  must  pay  us 
a  fine,  as  they  did  in  Carew  v.  Rutherford,  100  Mass.  1.  They  hav(j 
not  undertaken  to  forbid  the  contractors  emijloying  pointers,  tus 
they  did  in  Plant  v.  Woods,  170  Mjuss.  492.  So  far  as  the  labor 
unions  are  concerned  the  contractors  can  employ  point^TS  if  they 
choose,  but  if  the  contractors  choose  to  give  the  work  of  pointing 
the  bricks  and  stones  to  others  the  unions  take  the  stand  that  th(; 
contractors  will  have  to  get  some  one  else  to  lay  them.  The  efTect 
of  this  in  the  case  at  bar  appears  to  be  that  the  contractors  are  forced 
against  their  will  to  give  the  work  of  pointing  to  the  masons  and 
bricklayers.  But  the  fact  that  the  contractors  are  forced  to  do 
what  the}'  do  not  want  to  do  is  not  decisive  of  the  legality  of  th(> 
labor  union's  acts.  That  is  true  wherever  a  strike  is  successful.  The 
contractors  doubtless  would  have  liked  it  better  if  there  had  been 
no  competition  between  the  bricklayers*  and  masons'  unions  on  the 
one  hand  and  the  individual  pointers  on  the  other  hand.  But  there 
is  comj)etition.  There  being  competition,  they  prefer  the  coui-se 
they  have  taken.  They  prefer  to  give  all  the  work  to  the  unions 
rather  than  get  non-union  men  to  lay  bricks  and  stone  to  Ix?  pointed 
by  the  plaintiffs. 

Further,  the  effect  of  complying  with  the  labor  unions'  demands 
apparently  will  be  the  destruction  of  the  plaint itTs'  business.  But 
the  fact  that  the  business  of  a  plaintiff  is  destroyed  by  the  acts  of 
the  defendants  done  in  pursuance  of  their  right  of  competition  is 
not  decisive  of  the  illegality  of  the  acts.  It  was  well  said  by  Ibun- 
mond,  J.,  in  Martell  v.  White,  185  Mass.  255,  200,  in  regard  to  the 
right  of  a  citizen  to  pursue  his  business  without  interference  by  a 
combination  to  destroy  it:  "Speaking  generally,  however,  com- 
petition in  business  is  permitted,  although  frequently  disastrous  to 
those  engag(Hl  in  it.  It  is  alwavs  s(>lfish,  often  sharp,  and  sometimes 
deadly."  ... 

The  application  of  the  right  of  the  defendant  unions,  who  arc 
composed  of  bricklayers  and  stone  masons,  to  compete  with  the 
individual  plaint  itTs,  who  can  do  nothing  but  pointing  (as  we  have 
said),  is  in  the  case  at  bar  disastrous  to  the  ix)inters  and  hard  on 
the  contractors.  But  this  is  not  the  first  case  where  the  exercise 
of  the  right  of  competition  ends  in  such  a  result.     The  case  at  l)ar 


/U^- 


\r1 


274  LEGALITY   OF   ENDS   PURSUED  [CHAP.  V 

is  an  instance  where  the  evils  which  are  or  may  be  incident  to  com- 
petition bear  very  harshly  on  those  interested,  but  in  spite  of  such 
evils  competition  is  necessary  to  the  welfare  of  the  community.  .  .  . 
It  follows  that  the  third  clause  of  the  decree,  which  follows  the 
third  prayer  of  the  bill,  must  be  striken  out.^  .  .  . 

So  ordered.^ 

*  The  remainder  of  the  opinion  deals  with  the  first  and  second  causes  of  ac- 
tion, which  give  rise  to  issues  quite  distinct  from  the  first.  "The  firm  of  L.  P. 
Soule  &  Son  Co.  were  the  general  contractors  for  the  erection  of  the  Ford  Build- 
iag;  but  they  had  nothing  to  do  with  the  employment  of  'pointers.'  The 
pointing  of  that  building  was  being  done  under  a  contract  between  the  owners 
of  the  building  and  Pickett,  a  pointer  who  was  one  of  the  plaintiffs.  Other  build- 
ings were  being  erected  for  other  owners,  on  which  the  Soule  Co.  were  the  gen- 
eral contractors,  and  as  to  which  no  complaint  existed  in  reference  to  the  point- 
ing. The  bricklaying  and  masonry  on  these  other  buildings  were  being  done 
by  members  of  the  defendants'  union.  The  defendant  officials  induced  all  the 
bricklayers  and  masons  to  quit  working  for  the  Soule  Co.  on  these  other  build- 
ings, because  that  company  'was  doing  work  on  another  building  [the  Ford 
Building]  in  which  work  was  being  done  by  pointers,  employed  not  by  the  L.  P. 
Soule  &  Son  Co.  but  [by]  the  owTiers  of  the  building.'  The  evident  purpose 
was  to  thus  induce  the  Soule  Co.  to  exert  pressure  on  the  owners  of  the  Ford 
Building  to  discontinue  the  employment  of  the  pointers  (Pickett  et  ah.).  The 
court  held  that  this  conduct  was  not  justifiable.  The  decision  is  not  based  on 
the  ground  that  the  defendants  were  intentionally  inducing,  or  attempting  to 
induce,  a  breach  of  contract;  but  on  the  broad  ground  that  the  forcing  a  neutral 
third  person  to  exert  a  pressure  on  the  plaintiff's  employer  was  not  a  lawful 
means  of  competition."  (Condensed  statement  of  fact  taken  from  20  H.  L.  R. 
446.)  Loring,  J.,  said  (192  Mass.  587):  "That  strike  has  an  element  in  it  like 
that  in  a  sympathetic  strike,  in  a  boycott  and  in  a  blacklisting,  namely:  It  is  a 
refusal  to  work  for  A,  with  whom  the  strikers  have  no  dispute,  because  A  works 
for  B,  with  whom  the  strikers  have  a  dispute,  for  the  purpose  of  forcing  A  to  force 
B  to  yield  to  the  strikers'  demands.  In  the  case  at  bar  the  strike  on  the  L.  P. 
Soule  and  Son  Co.  was  a  .strike  on  that  contractor  to  force  it  to  force  the  owner  of 
the  Ford  Building  to  give  the  work  of  pointing  to  the  defendant  unions.  That 
pas.ses  beyond  a  case  of  competition  where  the  owner  of  the  Ford  Building  is  left 
to  choose  between  the  two  competitors.  Such  a  strike  is  in  effect  coinpclling  the 
L.  P.  Soule  and  Son  Co.  to  join  in  a  boycott  on  the  owner  of  the  Ford  Building. 
It  is  a  combination  by  the  union  to  olitain  a  decision  in  their  favor  by  forcing 
third  persons  who  have  no  interest  in  the  dispute  to  force  the  emi)loyer  to  decide 
the  dispute  in  their  (the  defenflant  unions')  favor.  Such  a  strike  is  not  a  justi- 
fiable interference  with  the  right  of  the  plaintiffs  to  pursue  their  calling  as  they 
think  best.  In  our  opinion  organized  labor's  right  of  coercion  and  compulsion 
is  limited  to  strikes  against  persons  with  whom  the  organization  has  a  trade  dis- 
pute; or  to  put  it  in  another  way,  we  are  of  opinion  that  a  strike  against  A,  with 
whom  the  .strikers  have  no  trade  dispute,  to  comi)el  A  to  force  B  to  yield  to  the 
strikers'  demands,  is  an  imjustifiable  interference  with  the  right  of  A  to  pursue 
his  calling  as  he  thinks  best." 

^  Accord:   Minasian  v.  Osborne,  210  Mass.  250  (strike  to  secure  the  abolition 
of  a  system  of  work  felt  by  the  workers  to  be  unjust). 


BECT.  IV]  STRIKES   TO    UNIOXIZE    SHOPS  275 

Section  4.    Strikes  to  Force  the  Discharge  of  Non-Union  Men  and 
to  Unionize  Shops 

ALLEN  V.  FLOOD 
House  of  Lords.     1897 

[isns]  A.  c.  1 ' 

The  facta  material  to  this  appeal  (omittinj^  matters  not  now  in 
question)  were  as  follows:  In  April,  1S94,  about  forty  boiler-makei-s, 
or  "iron-men,"  were  employed  hy  the  ( Ilrnj^all  Iron  Co.  in  re[)airinj^ 
a  ship  at  the  company's  Reuf'ut  Dock  in  Millwall.  They  were  mem- 
bers of  the  boiler-makers'  society,  a  trade  union,  which  objected  to 
the  employment  of  shipwrights  on  ironwork.  On  April  12  the  ri'- 
spondents  Flood  and  Taylor,  who  were  shipwrights,  were  engaged 
by  the  company  in  repairing  the  woodwork  of  tlie  same  ship,  but 
were  not  doing  ironwork.  The  boiler-makers,  on  discovering  that 
the  respondents  had  shortly  Ix'fore  been  employed  by  another  firm 
(Mills  &  Knight)  on  the  Thames  in  doing  ironwork  on  a  ship,  1m'- 
camc  much  excited  and  began  to  talk  of  leaving  their  employment. 
One  of  them,  l']lliott,  telegraphed  for  the  apjx'llant  Allen,  the  Lon- 
don delegate  of  the  boiler-makers'  society.  Allen  came  up  on  the 
13th,  and  being  told  by  Elliott  that  the  iron-men,  or  some  of  them, 
would  leave  at  dinner-time,  replied  that  if  they  took  the  law  into 
their  own  hands  he  would  use  his  influence  with  the  council  of  the 
society  that  they  should  be  deprived  of  all  benefit  from  the  society 
and  be  fined,  and  that  they  must  wait  and  see  how  things  settled. 
Allen  then  had  an  interview  with  Halkett,  the  Glengall  Co.'s  man- 
ager, and  Edmonds  the  foreman,  and  the  result  was  that  the  respond- 
ents were  discharged  at  the  end  of  the  day  by  Halkett.  An  action 
was  then  brought  by  the  respondents  against  Allen  for  maliciously 
and  wrongfully  and  with  intent  to  injure  th(^  plaintifTs  procuring 
and  inducing  the  Glengall  Co.  to  break  their  contract  with  the  plain- 
tifTs and  not  to  enter  into  new  contracts  with  them,  and  also  mali- 
ciously, etc.,  intimidating  and  coercing  the  plaintifTs  to  break,  etc., 
and  also  unlawfully  and  maliciously  conspiring  with  others  to  do  the 
above  acts. 

At  the  trial  before  Kennedy,  .1.,  and  a  common  jury  Halkett  and 
I'jlnionds  were  called  for  the  plaintifTs,  and  gave  their  account  of 
the  interview  with  Allen.  In  substance  it  wa.s  this:  Allen  told 
them  that  he  had  been  sent  for  because  Flood  and  Taylor  were 
known  to  have  done  ironwork  in  Mills  tt  Knight's  yard,  and  that 
unless  Flood  and  Taylor  were  discharged  all  the  meml)ers  of  the 
boiler-makers'  society  would  be  "callcMl  out"  or  ''knock  off"  work 
that  day;    th(\v  could  not  be  sure  which  expression  was  u.sed;    that 

'  Some  of  tho  opinions  am  omitted,  anti  of  tlu).><c  quototl  only  comparatively 
brief  extnvcts  arc  nivcn.  —  l]i). 


276  LEGALITY   OF   ENDS   PURSUED  [CHAP.  V 

Halkett  had  no  option;  that  the  iron-men  were  doing  their  best  to 
put  an  end  to  the  practice  of  shipwrights  doing  ironwork,  and  where- 
ever  these  men  were  employed,  or  other  shipwrights  who  had  done 
ironwork,  the  boiler-makers  would  cease  work  —  in  every  yard  on 
the  Thames.  Halkett  said  that  if  the  boiler-makers  (about  100  in 
all  were  employed)  had  been  called  out  it  would  have  stopped  the 
company's  business,  and  that  in  fear  of  the  threat  being  carried  out 
he  told  Edmonds  to  discharge  Flood  and  Taylor  that  day,  and  that 
if  he  knew  of  any  shipwrights  having  worked  on  ironwork  elsewhere, 
when  he  was  engaging  men,  for  the  sake  of  peace  and  quietness  for 
themselves  he  was  not  to  employ  them.  Allen  was  called  for  the 
defence.  His  account  of  the  interview  is  discussed  in  the  judgment 
of  Lord  Halsbury,  L.  C. 

Kennedy,  J.,  ruled  that  there  was  no  evidence  of  conspiracy,  or  of 
intimidation  or  coercion,  or  of  breach  of  contract.  Flood  and  Taylor 
having  been  engaged  on  the  terms  that  they  might  be  discharged 
at  any  time.  In  the  ordinary  course  their  employment  would  have 
continued  till  the  repairs  were  finished  or  the  work  slackened. 

In  reply  to  questions  put  by  Kennedy,  J.,  the  jury  found  that 
Allen  maliciously  induced  the  Glengall  Co.  (1)  to  discharge  Flood 
and  Taylor  from  their  employment;  (2)  not  to  engage  them;  that 
each  plaintiff  had  suffered  20Z.  damages;  and  that  the  settlement  of 
the  dispute  was  a  matter  within  Allen's  discretion.  After  considera- 
tion Kennedy,  J.,  entered  judgment  for  the  plaintiffs  for  401.  This 
decision  was  affirmed  by  the  Court  of  Appeal  (Lord  Esher,  M.  R., 
Lopes  and  Rigby,  L.  JJ.).^  Against  these  decisions  Allen  brought 
the  present  appeal.  It  was  argued  first  before  Lord  Halsbury,  L. 
C,  and  Lords  Watson,  Herschell,  Macnaghten,  Morris,  Shand,  and 
Davey  on  December  10,  12,  16,  17,  1895,  and  again  (the  following 
judges  having  been  summoned  to  attend  —  Hawkins,  Mathew,  Cave, 
North,  Wills,  Grantham,  Lawrance  and  Wright,  J  J.)  on  March  25, 
26,  29,  .30,  April  1,  2,  1897  before  the  same  noble  and  learned  lords, 
with  the  addition  of  Lords  Ashbourne,  and  James  of  Hereford.  .  .  . 

Dec.  14.  Lord  Halsbury,  L.  C.  .  .  .  The  first  objection  made 
to  the  plaintiffs'  right  to  recover  for  the  loss  which  they  thus  un- 
doubtedly suffered  is  that  no  right  of  the  plaintiffs  was  infringed, 
and  that  the  right  contended  for  on  their  behalf  is  not  a  right  recog- 
nised by  law,  or,  at  all  events,  only  such  a  right  as  everyone  else 
is  entitled  to  deprive  them  of  if  they  stop  short  of  physical  violence 
or  obstruction.    I  think  the  right_to_em ploy  their  labour_as_they  will 

pnJvisions'tcTliiTaTccany  undue  interference  with  tliat  right  an  ac- 
tioiiable^r  ong . 

Very  early  authorities  in  the  law  have  recognised  the  right;  and, 
in  my  view,  no  authority  can  be  found  which  questions  or  qualifies 
it.     The  schoolmaster  who  complained  that  his  scholars  were  being 

'  [lS9r,12(2.  B.  21. 


SECT.  IV]  STRIKES   TO    UNIONIZE   SHOPS  277 

assaulted  and  brought  an  action,  the  quarry  ownor  who  complained 
that  his  servants  were  heinj^  menaced  and  molested,  were  hoth 
hold  to  have  a  rij^ht  of  action.  And  it  apix'ars  to  me  that  the  im- 
portance of  those  cases,  and  the  principle  established  by  them,  liave 
not  been  sufficiently  considered.  It  is  said  that  threats  of  violence 
or  actual  violence  were  unlawful  means:  the  lawfulness  of  the  means 
I  will  discuss  hereafter.  But  tiie  point  on  which  the.se  ca.ses  are 
important  is  the  existence  of  the  ri^ht.  It  was  not  the  schoolma.ster 
who  was  assaulted;  it  was  not  the  quarry  owner  who  was  lussaulted 
or  threatened;  but,  nevertheless,  the  schoolnuuster  was  held  entitled 
to  brinj^  an  action  in  respect  of  t\u)  lo.ss  of  scholars  attending;;  his 
school,  and  the  (juarry  own(!r  in  respect  of  the  lo.ss  of  workmen  to 
his  quarry.  They  were  third  persons;  no  violence  or  threats  were 
applied  to  them,  and  the  caasc  of  action,  which  they  had  a  riRht  to 
insist  on,  wtis  the  indirect  eff(;ct  upon  them.selves  of  violence  and 
threats  api)lied  to  otlun-s. 

My  Lortis,  in  my  view  these  are  bindirif?  authorities  to  shew  that 
the  preliminary  question,  namely,  whether  there  was  any  riKht  of 
the  plaintifTs  to  pursue  their  calling;  unmolested,  nuist  bo  answind 
in  the  affirmative.  Th(^  (|uestion  of  wliat  is  the  right^invaded-Wuulxl 
seem  to  be  reavSonabFy  answeretl,  and  the  univer.sality  of  the  ri^lit 
to  all  Her  Majesty~'s~sut5jecls  seenis^tgjne_toJjcj^o  imjimien^^ 
its  existeiTcev  It  is,  indeed,' part  of  that  freedom  from  restraint, That 
riberty^(')r  aTttT)!!,  which,  in  my  view,  may  be  found  running  through 
the  principles  of  our  law.   .   .  . 

First  it  is  .said  that  the  company  were  acting  within  their  legal 
rights  in  discharging  the  plaintiffs.  So  they  were;  but  does  that 
afifect  the  question  of  the  responsil)ility  of  the  person  who  caused 
them  so  to  act  l)v  the  means  he  used?  The  scholars  who  went  away 
from  the  school  wore  (Mitithnl  to  do  so.  The  miners  were  entitled 
to  cease  working  at  the  quarry.  The  natives  were  entitled  to  avoid 
running  the  risk  of  being  shot;  but  the  question  is,  What  was  the 
cau.se  of  their  thus  exercising  their  legal  right? 

The  f}U(^stion  must  b(>  whether  what  was  done  in  fact,  and  wliat 
did  in  fact  procure  tiio  dismissal  of  the  plaintiff,  was  an  actional)lo 
wrong  or  not.  I  have  never  heard  that  a  man  who  was  dismissed 
from  his  service  by  reason  of  some  .slander  could  not  maintain  an 
action  against  the  slanderer  liecause  th(>  master  had  a  l(>gal  right  to 
discharge  him.   .   .   . 

But  the  obj(>ction  made  by  the  defiMidaiits  app(>ars  to  be  that 
the  word  "malicious"  adds  nothing;  that  if  the  thing  was  lawful 
it  was  lawful  absolut(>ly;  if  it  was  not  lawful  it  was  unlawful  —  the 
addition  of  the  word  "malicious"  can  make  no  ditTerence.  The 
fallacy  apjjears  to  me  to  reside  in  the  a.'^sumption  that  everything 
must  be  absolutely  lawful  or  absolutely  unlawful.  There  art^  many 
things  which  may  Ix'come  lawful  or  unlawful  according  to  circum- 
.stanc(\s. 


278  LEGALITY   OF   ENDS   PURSUED  [CHAP.  V 

In  a  decision  of  this  House  it  has  undoubtedly  been  held  that 
whatever  a  man's  motives  may  be,  he  may  dig  into  his  own  land 
and  divert  subterranean  water  which  but  for  his  so  treating  his 
own  land  might  have  reached  his  neighbour's  land.  But  that  is 
because  the  neighbour  had  no  right  to  the  flow  of  the  subterranean 
water  in  that  direction,  and  he  had  an  absolute  right  to  do  what  he 
would  with  his  own  property.  But  what  analogy  has  such  a  case 
with  the  intentional  inflicting  of  injury  upon  another  person's  prop- 
erty, reputation,  or  lawful  occupation?  To  dig  into  one's  own  land 
under  the  circmnstances  stated  requires  no  cause  or  excuse.  He 
may  act  from  mere  caprice,  but  his  right  on  his  own  land  is  abso- 
lute, so  long  as  he  does  not  interfere  with  the  rights  of  others. 

But,  referring  to  Bowen,  L.  J.'s,  observation,  which  to  my  mind 
is  exactly  accurate,  "in  order  to  justifyjthejntcmtion^^ 
which  is  calculated  in  thejrdinaiy  course~or^vents  to  damage,  and 
which  does^lip  f a^i^jiamage~airottlgr1n  Tha^_otheZj)£rs6n\j)rQper^ 
or"trade.    voujnust^jiave  some  ]ust  cause_or  excuse . 

Now,  the  word  '^malicious"  appears  to  me  to  negative  just  cause 
or  excuse;  and  without  attempting  an  exhaustive  exposition  of  the 
word  itself,  it  appears  to  me  that,  if  I  apply  the  language  of  Bowen, 
L.  J.,  it  is  enough  to  shew  that  this  was  within  the  meaning  of  the 
law  "malicious." 

It  appears  to  me  that  no  better  illustration  can  be  given  of  the 
distinction  on  which  I  am  insisting  between  an  act  which  can  be 
legally  done  and  an  act  which  cannot  be  so  done  because  tainted 
with  malice,  than  such  a  colloquy  between  the  representative  of 
the  master  and  the  representative  of  the  men  as  might  have  been 
held  on  the  occasion  which  has  given  rise  to  this  action,  nthej^ep- 
resentative  of  the  men  had  in  good  faith  and  withouUndirect  mor 
trVg""'pointed  out  the  inconvenience  that  might  result  from  having^ 
two  sets  of  men  worKmg  together  on  the  same  ship,  whose  views 
trpon  the  particular  question  were  so  diverse  that  it  would  be  in- 
expedient to  bring  them  together,  no  one  could  have  complaiilOcT; 
but  if  his  object  was  to  punish  the  men  belonging  to  anotheiMinion 
because  on  some  former  occasion  they  had  worked  on  an  irorTsmp. 
it  seems  to  me  that  the  difference  of  motive  may  make  the  whole 
difference  between  the  lawfulness  or  unlawfulness  of  what  he  (lid.  .  .  . 

My  Lords,  I  regret  that  I  am  compelled  to  differ  so  widely  with 
some  of  your  Lordships;  but  my  difference  is  founded  on  the  belief 
that  in  denying  these  plaintiffs  a  remedy  we  are  departing  from  the 
principles  which  have  hitherto  guided  our  courts  in  the  preserva- 
tion of  individual  liberty  to  all.  .  .  . 

Lord  Watson.  .  .  .  The  whole  pith  of  the  verdict,  in  so  far  as 
it  directly  concerns  the  appellant,  is  contained  in  the  word  "mali- 
ciously"—  a  word  which  is  susceptible  of  many  different  mean- 
ings. The  expression  "imliciously  induce,''  as  it  occurs  upon  the 
face  of  the  verdict,  is  ambiguous:  it  is  capaBl^  of  signifying  that  the 


i 


SECT.  IV]  STRIKES   TO    UMONIZE    SHOPS  279 

appellant  knowingly  induced  an  act  which  of  itself  constituted  a 
civil  wrong,  or  it  may  simply  mean  that  the  apix'llant  procured,  with 
intent  to  injure  the  respondents,  an  act  which,  ajjart  fnjm  motive, 
would  luA  have  amounted  to  a  civil  wrcjiig;  and  it  is,  in  my  <jpini(jn, 
material  to  ascertain  in  which  of  these  senses  it  was  us<'d  by  the  jury. 

Althouf^h  the  rule  may  be  otherwise^withj|vgard  to  crimes,  the 
law  of  England  does  not,  according  lo  my  apprehension,  ti^ke  into_ 
account  motive  as  coTisTiTuting  an  elem<'nt  of  civil  wnjng.  Any  in- 
vasion of  the  civil  rights  of  another  [xMson  is  in  itself  a  legal  wrori^ 
carrying  with  it  liability  to  repair  itsnccessary  or  natuiil  .>,ii^j^ 
quenches,  in  so  far  as  these  are  injurious  to  the  person  who>e  jiglit  i.s 
in/ringed,  whetTier  the  motrve  whTch^yroinpT(\d  JOi^ooil,  bad,  ox_ 
indilTercM^t.  But  the  existence^  of  a  bad  motive,  in  tlu?  ciu^e  of  an 
act  which  is  not  in  itself  illegal,  will  not  convert  that  act  into  a  civil 
wrong  for  which  reparation  is  due.  A  wnnigful  act,  done  knowin^^ly 
and  with  a  view  to  its  injurious  consequences,  may,  in  the  sense jjf 
law,  be  malicious;  but  such  malice  (lerlves  its  es.sential  character 
fixjirrthecircumstance  that  tlie  act  done  constitutes  a  violation  of 
the  law.  .  .  . 

The  root  of  the  principle  is  that,  in  any  legal  ([uestion,  malice_ 
dependsj^  not  upon  evil  motive  which  influenced  tiie  inijid  of  the 
actor,  but  upon  tlKTlTIegal^cha fader  of  the~Tict^  winch  he  contein- 
plated  and  committed.  _In  my  opinion  it  is  alike  consistent  with 
reason  and  common  sense  that  when  the  act  done  is,  apart  from 
the  feelings  which  prompted  it,  legal,  the  civil  law  ought  to  take 
no  cognizance  of  its  motive.  -^ 

It  does  not  appear  to  me  to  a,(lmit  of  d()ul)t  tiiat  tlie  jury,  in  find-     /^  d    y^ 
ing  the  action  of  the  company  to  have  been  maliciously  induced  by 
the  appellant,  simply  meant  to  affirm  that  the  appellant  was  in- 
fluenced by  a  bad  motive,  namely,  an  intention  to  injure  the  respond- 
ents in  their  trade  or  calling  of  shipwrights.   .   .   . 

It  is,  in  111}'  opinion,  the  absolute  light  of  every  workman  to  exer- 
cise his  own  option  with  regard  to  the  persons  in  whose  society  he 
will  agree  or  continue  to  work.  It  may  be  deplorable  that  feelings 
of  rivalr>'  between  difTerent  associations  of  working  men  should 
ever  run  so  high  as  to  make  members  of  one  union  seriously  object 
to  continue  their  labour  in  company  with  members  of  another  trade 
union;  but  so  long  as  they  commit  no  legal  wrong,  and  use  no  means 
which  are  illegal,  they  are  at  perfect  liberty  to  act  upon  their  own 
views.  That  th(>  b(Ml(>r-makers  who  were  employed  at  the  Regent 
Dock,  Millwall,  did  seriously  resent  the  presence  among  thcMii  of  the 
respondents  very  plainly  appears  from  the  evidence  of  the  respond- 
ents themselves;  and  that  they  would  certainly  have  left  the  dock 
had  the  respondents  continued  to  be  (>mployed  apix»ars  to  me  to 
be  an  undoubted  fact  in  the  ca.se.  They  w(>re  not  under  any  con- 
tinuing engagement  to  their  employers,  and.  if  they  had  left  their 
work  and  none  out  on  strike,  they  would  have  been  acting  within 


J^ 


280  LEGALITY    OF   ENDS   PURSUED  [CHAP.  V 

their  right,  whatever  might  be  thought  of  the  propriety  of  the  pro- 
ceeding. Not  only  so;  they  were,  in  my  opinion,  entitled  to  inform 
the  Glengall  Iron  Co.  of  the  step  which  they  contemplated,  as  well 
as  of  the  reasons  by  which  they  were  influenced,  and  that  either  by 
their  own  mouth,  or,  as  thej'  preferred,  by  the  appellant  as  their 
representative.  ,  .  , 

Having  come  to  the  conclusion  with  the  majority  of  your  Lord- 
ships who  have  heard  the  appeal,  that  the  doctrine  advanced  by  the 
respondents  is  neither  sound  in  principle  nor  supported  by  authority, 
I  move  that  the  order  appealed  from  be  reversed,  and  judgment 
entered  for  the  appellant.  .  .  . 

Lord  Herschell.  .  .  .  The  Master  of  the  Rolls  declined  in  the 
present  case  to  define  what  was  meant  by  "maliciously" :  he  con- 
sidered this  a  question  to  be  determined  by  a  jury.  But  if  acts  are, 
or  are  not,  unlawful  and  actionable,  according  as  this  element  of 
malice  be  present  or  absent,  I  think  it  is  essential  to  determine  what 
is  meant  by  it.  I  can  imagine  no  greater  danger  to  the  community: 
than  that  a  jury  should  be  at  liberty  to  impose  the  penalty  of_pax- 
mgHamages  for  acts  which  are  otherwise  lawful,  because  they  choose, 
without  any  k^gal  definition  of  the  term,T6'say  that  they  arejmali- 
cioi^.  No  one  would  know  what  his  rights  were.  The  result  would 
BeTo  putall  our  actions  at  the  mercy  of  a  particular  tribunal  whose 
view  of  their  propriety  might  differ  from  our  own.  However_mali£p 
mav  be  defined,  if  motive  be  an  ingredient  of  it,  my  sense  of  the 
danger_would  not  be  diminished.  ...  If  the  fact  bejthat  malice  is_ 
tlie~gist  of  jHe  actionjofliiducilig  or  prociifing'an  act  to  be  done  to 


the  prejudice^  another,  and  not  that  the  act  induced  or  procursE 
is  an  unlawfuToneas  b^Sg^JjreaclTqr^ntract'^'ot&erwise,  I  can 
see  no  possible  ground  tor  confining  th^~action  to  cases  m  which  the 
thing  induced  is  the  not  entering  into  a  contract.  It  seems  to  me 
that  it  must  equally  lie  in  the  case  of  every  lawful  act  which  one 
man  induces  another  to  do  where  his  purpose  is  to  injure  his  neigh- 
bour or  to  benefit  himself  at  his  expense.  I  cannot  hold  that  such 
a  proposition  is  tenable  in  principle,  and  no  authority  is  to  be  found 
for  it.  I  should  be  the  last  to  suggest  that  the  fact  that  there  was  no 
precedent  was  in  all  cases  conclusive  against  the  right  to  maintain 
an  action.  It  is  the  function  of  the  courts  to  apply  established 
legal  principles  to  the  changing  circumstances  and  conditions  of 
human  life.  But  the  motive  of  injuring  one's  neighbour  or  of  benefit- 
ing oneself  at  his  expense  is  as  old  as  human  nature.  It  must  for 
centuries  have  moved  men  in  countless  instances  to  persuade  others 
to  do  or  to  refrain  from  doing  particular  acts.  The  fact  that  under 
such  circumstances  no  authority  for  an  action  founded  on  these  ele- 
ments has  been  discovered  does  go  far  to  shew  that  such  an  action 
cannot  be  maintained.  I  think  these  considerations  (subject  to  a 
point  which  I  will  presently  discuss)  arc  sufficient  to  shew  that  the 
present  action  cannot  be  maintained.  .  .  . 


SECT.  IV]  STRIKES   TO    UNIONIZE    SHOPS  281 

I  undcrsfood  it  to  he  admitted  at  the  Bar,  and  it  was  indf?ed  stated 
by  one  of  the  h-arncd  jud^ies  in  tljc  (loiirt  of  Ai)iK'al,  that  it  would 
have  Ixxn  perfectly  lawful  for  all  the  ironworkers  to  leave  tlieir 
employment  and  not  to  accept  a  subsequent  engagement  to  work 
in  the  company  of  the  plaintiffs.  At  all  events,  I  cannot  doubt  that 
this  would  have  been  so.  I  cannot  doubt  cither  that  the  ai)|)«'llant 
or  the  authorities  of  the  union  would  ('(jually  have  acted  witliin  hi.s 
or  their  rij^hts  if  he  or  they  had  "called  the  men  out."  They  were 
members  of  the  union.  It  was  for  them  to  det^-rmine  whether  they 
would  Ix'come  so  or  not,  and  whether  they  wouhl  follow  or  not  fol- 
low the  instructions  of  its  authorities,  tiiouf^h  no  doubt  if  they  had 
refused  to  obey  any  instructions  which  under  the  rules  of  the  union 
it  was  competent  for  the  authorities  to  give  they  might  have  lr)st 
the  benefits  they  derived  from  m(>mbership.  It  is  not  for  your  Lord- 
ships to  express  any  o{)inion  r)n  tiie  i)olicy  of  trade  um'ons,  member- 
ship of  which  may  undoubtedly  inlluence  the  action  of  those  who 
have  joined  them.  They  are  now  recognised  by  law;  there  are  com- 
binations of  employers  as  well  as  of  employed.  The  members  of 
these  unions,  of  whichever  cla.ss  they  are  composed,  act  in  the  in- 
terest of  their  class.  If  they  resort  to  imlawful  acts  they  may  be 
indicted  or  sued.  If  they  do  not  resort  to  unlawful  acts  they  are 
entitled  to  further  their  interests  in  the  manner  which  seems  to  them 
best,  and  most  likely  to  be  effectual.  .  .  .  Whether  we  approve 
or  disapprove  of  suc-h  attempted  trade  restrictions,  it  was  entirely 
within  the  right  of  the  ironworkers  to  take  any  fteps,  not  unlawful, 
to  prevent  any  of  the  work  which  they  regarded  as  legitimately 
theirs  being  entrusted  to  other  hands.  .  .  .  The  object  which  the 
defendant,  and  those  whom  he  represented,  had  in  view  through- 
out was  what  they  l)elieved  to  be  the  interest  of  the  class  to  which 
they  belonged;  the  step  taken  was  a  means  to  that  end.  The  act 
which  caused  the  damage  to  the  plaintiffs  was  that  of  the  iron  com- 
pany in  refusing  to  employ  tliem.  The  company  would  not  sub- 
ordinate their  own  inten^sts  to  tlu^  j)laintiffs.  It  is  conceded  that 
they  could  take  this  course  with  impunity.  Why,  then,  should  the 
defendant  be  liable  because  he  did  not  subordinate  the  interests  of 
those  he  represented  to  the  plaintiffs'?  Self  interest  dictated  alike 
the  act  of  those  who  cau.sed  the  damage,  and  the  act  which  is  found 
to  have  induceci  ihem  to  cause  it.  .   .   . 

I  do  not  doubt  that  everj-one  has  a  right  to  pursue  his  trade  or 
employment  without  "molestation"  or  "obstruction"  if  those  terms 
are  used  to  imply  some  act  in  itself  wrongful.  This  is  only  a  branch 
of  a  much  wid(>r  projiosition,  namely,  that  everyone  has  a  right  to 
do  any  lawful  act  he  plea.'^es  without  molestation  or  obstruction.  If 
it  be  intended  to  assert  that  an  act  nf)t  otherwise  wrongful  always 
becomes  so  if  it  interferes  with  another's  tnxdo  or  employment,  and 
needs  to  be  excused  or  justified,  I  say  that  such  a  proposition  in  my 
opinion  has  no  .solid  foundation  in  reason  to  rest  uix)n.     A  man's 


282  LEGALITY   OF   ENDS   PURSUED  [CHAP.  V 

right  not  to  work  or  not  to  pursue  a  particular  trade  or  calling,  or 
to  determine  when  or  where  or  with  whom  he  will  work  is  in  law  a 
right  of  precisely'  the  same  nature,  and  entitled  to  just  the  same  pro- 
tection as  a  man's  right  to  trade  or  work.  They  are  but  examples 
of  that  wider  right  of  which  I  have  already  spoken.  That  wider 
right  embraces  also  the  right  of  free  speech.  A  man  has  a  right  to 
say  what  he  pleases,  to  induce,  to  advise,  to  exhort,  to  command, 
provided  he  does  not  slander  or  deceive  or  commit  any  other  of  the 
wrongs  known  to  the  law  of  which  speech  may  be  the  medium.  Un- 
less he  is  thus  shewn  to  have  abused  his  right,  why  is  he  to  be  called 
upon  to  excuse  or  justify  himself  because  his  words  may  interfere 
with  some  one  else  in  his  calling?  .  .  . 

The  notion  that  there  may  be  a  difference  in  this  respect  between 
acts  affecting  trade  or  employment  and  other  acts  seems  to  be  largely 
founded  on  certain  dicta  of  Bowen,  L.  J.,  in  the  case  of  the  Mogul 
Steamship  Co.  ...  In  that  case  the  very  object  of  the  defendants 
was  to  induce  shippers  to  contract  with  them,  and  not  to  contract 
with  the  plaintiffs,  and  thus  to  benefit  themselves  at  the  expense  of 
the  plaintiffs,  and  to  injure  them  by  preventing  them  from  getting 
a  share  of  the  carrying  trade.  Its  express  object  was  to  molest  and 
interfere  with  the  plaintiffs  in  the  exercise  of  their  trade.  It  was 
said  that  this  was  held  lawful  because  the  law  sanctions  acts  which 
are  done  in  furtherance  of  trade  competition.  I  do  not  think  the 
decision  rests  on  so  narrow  a  basis,  but  rather  on  this,  that  the  acts 
by  which  the  competition  was  pursued  were  all  lawful  acts,  that  they 
were  acts  not  in  themselves  wrongful,  but  a  mere  exercise  of  the  right 
to  contract  with  whom,  and  when,  and  under  what  circumstances 
and  upon  what  conditions  they  pleased.  I  am  aware  of  no  ground 
for  saying  that  competition  is  regarded  with  special  favour  by  the 
law;  at  all  events,  I  see  no  reason  why  it  should  be  so  regarded.  It 
may  often  press  as  hardly  on  individuals  as  the  defendant's  acts  are 
alleged  to  have  done  in  the  present  case.  But  if  the  alleged  exception 
could  be  established,  why  is  not  the  present  case  within  it?  What 
was  the  object  of  the  defendant,  and  the  workmen  he  represented, 
but  to  assist  themselves  in  their  competition  with  the  shipwrights? 
A  man  is  entitled  to  take  steps  to  compete  to  the  best  advantage  in 
the  employment  of  his  labour,  and  to  shut  out,  if  he  can,  what  he 
regards  as  unfair  competition,  just  as  much  as  if  he  was  carrying  on 
th(;  business  of  a  shipowner.  The  inducement  the  appellant  used 
to  further  his  end  was  the  prospect  that  the  members  of  his  union 
would  not  work  in  company  with  what  they  deemed  unfair  rivals  in 
their  calling.  What  is  th(>  difference  between  this  case  and  that  of 
a  union  of  shipowners  who  inchice  merciiants  not  to  enter  into  con- 
tracts with  the  [)laiiitifTs,  by  the  prospect  that  if  at  any  time  they 
employ  the  plaintiffs'  ships  they  will  suffer  the;  penalty  of  being 
made  to  pay  higher  charges  than  their  neighbours  at  the  time  when 


SECT.  IV]  STIUKES    T(J    l.NKJNiaE    SHOPS  283 

the  defciulunts'  ships  alone  visit  the  ports?     In  my  opinion  there  is 
no  difference  in  principle  between  the  two  ca.s<'s.   .   .   . 

For  the  reasons  I  have  ji;iveri  I  tliink  the  jiidjjmeMt  should  |je  re- 
versed, and  judgment  enteretl  in  the  action  ftjr  the  defendant  with 
costs.  .  .  . 

Lord  Macnagiitkn.  My  Lords,  1  am  sorry  to  say  that  I  must 
begin  by  recapitulating  the  facts  of  the  case.  For  the  findings  of 
the  jury,  taken  by  themselves,  do  not  convey  to  my  fiiifid  any  def- 
inite meaning.  The  jury  have  found  that  the  apiM'llant  Allen  "mali- 
ciou.sly  inducQi}"  the  (Uengall  Iron  Co.  to  discharge  the  re8fX)n(leTil8" 
from  their  service,  and  they  have  awarded  damages  in  con.s<'(pience. 
I  do  not  know  what  the  jury  meant  by  the  word  "induced";  I  am 
not  sure  that  I  know  what  they  meant  by  the  word  "maliciously." 
Sometimes,  intleed,  I  rather  doubt  whether  I  (juite  understand  that 
unhappy  expression  myself.  I  am  therefore  compelled  to  turn  for 
help  to  the  evidence  at  the  trial.   .   .   . 

So  we  .see  now,  I  think,  what  the  findings  of  the  jurj'  come  to  if 
they  are  to  be  treated  jus  Ix'ing  in  accordance  with  the  evidence. 
They  must  mean  that  Allen  induced  the  company  to  discharge  the 
plaintiffs,  by  representing  to  the  manager,  not  otherwi.se  than  in 
accordance  with  the  truth,  the  state  of  feeling  in  the  yard,  and  the 
intentions  of  tiie  workmen,  and  that  he  did  so  "maliciously,"  l>e- 
eause  he  must  have  known  what  the  issue  of  his  communication  to 
the  manager  would  be,  and  naturally  perhaps  he  was  not  .sorr}'  to 
see  an  example  made  of  [x^rsons  obnoxious  to  his  union.  But  is  his 
conduct  actionable?  It  would  l)e  very  singular  if  it  were.  No  ac- 
tion would  lie  against  the  company  for  tlischarging  the  two  ship- 
wrights. No  action  would  lie  against  the  iron-men  for  striking 
against  them.  No  action  would  lie  against  the  officers  of  the  miion 
for  .sanctioning  such  a  strike.  But  if  ihv  respondents  are  right  the 
person  to  answer  in  damages  is  the  man  who  happened  to  l)e  the 
medium  of  communication  between  the  iron-men  and  the  company 
—  the  most  innocent  of  the  three  parties  concerned,  for  he  neither 
set  the  "agitation"  on  foot,  nor  did  he  do  anything  to  increa,se  it, 
nor  w:is  his  the  order  that  put  an  end  to  the  connection  between 
employer  and  employed.  It  .^eems  to  me  that  the  result  would  have 
be(Mi  just  the  same  if  Edmonds  had  told  Mr.  Halkett  what  w:ls 
going" on  in  the  yard,  or  if  Mr.  flalkett  had  learned  it  from  Flood 
and  Taylor  themselv(\s. 

Even  if  I  am  wrong  in  my  view  of  the  evidence^  and  the  verdict, 
if  the  verdict  amounts  to  a  finding  that  Allen's  conduct  was  mali- 
cious in  every  sense  of  the  word,  and  that  he  procured  the  dismi.-^-sal 
of  Floo<l  an(l  Taylor,  that  is,  that  it  was  his  act  and  conduct  alone 
which  ca»i.s(>d  their  disnu'ssal,  and  if  such  a  verdict  were  warranted 
by  the  evidence,  I  should  still  be  of  opinion  that  judgment  was 
wrongly  entered  for  the  respondents.     I  do  not  tiiink  that  there  id 


284  LEGALITY    OF    ENDS    PURSUED  [CHAP.  V 

any  foundation  in  good  sense  or  in  authority  for  the  proposition 
that  a  person  who  suffers  loss  by  reason  of  another  doing  or  not 
doing  some  act  which  that  other  is  entitled  to  do  or  to  abstain  from 
doing  at  his  own  will  and  pleasure,  whatever  his  real  motive  may 
be,  has  a  remedy  against  a  third  person  who,  by  persuasion  or  some 
other  means  not  in  itself  unlawful,  has  brought  about  the  act  or 
omission  from  which  the  loss  comes,  even  though  it  could  be  proved 
that  such  person  was  actuated  by  malice  towards  the  plaintiff,  and 
that  his  conduct  if  it  could  be  inquired  into  was  without  justification 
or  excuse.  .  .  . 

Suppose  a  customer,  not  content  with  taking  away  his  own  cus- 
tom, says  something  not  slanderous  or  otherwise  actionable  or  even 
improper  in  itself  to  induce  a  friend  of  his  not  to  emplo}'  the  trades- 
man any  more.  Neither  the  one  nor  the  other  is  liable  for  taking 
away  his  own  custom.  Is  it  possible  that  the  one  can  be  made  liable 
for  inducing  the  other  not  to  employ  the  person  against  whom  he 
has  a  grudge?  If  so,  a  fashionable  dressmaker  might  now  and  then, 
I  fancy,  be  plaintiff  in  a  very  interesting  suit.  The  truth  is  that 
questions  of  this  sort  belong  to  the  province  of  morals  rather  than 
to  the  province  of  law.  Against  spite  and  malice  the  best  safeguards 
are  to  be  found  in  self-interest  and  public  opinion.  Much  more 
harm  than  good  would  be  done  by  encouraging  or  permitting  in- 
quiries into  motives  when  the  immediate  act  alleged  to  have  caused 
the  loss  for  which  redress  is  sought  is  in  itself  innocent  or  neutral  in 
character,  and  one  which  anybody  may  do  or  leave  undone  without 
fear  of  legal  consequences.  Such  an  inquisition  would,  I  think,  be 
intolerable,  to  say  nothing  of  the  probability  of  injustice  being  done 
by  juries  in  a  class  of  cases  in  which  there  would  be  ample  room 
for  speculation  and  wide  scope  for  prejudice.  ...  I  cannot,  there- 
fore, agree  with  the  late  Master  of  the  Rolls  in  thinking  that  the 
act  complained  of  was  "wrongful"  because  it  was  "malicious," 
and  that  if  there  be  a  malicious  act,  and  loss  resulting  from  that 
act,  it  does  not  matter  whether  there  has  been  a  violation  of  right 
or  not. 

I  am  of  opinion  that  jugdment  should  be  entered  for  the  appel- 
lant. .  .  . 

Lord  Shand.  My  Lords,  I  am  of  opinion  that  the  judgment  com- 
plained of  should  be  reversed,  and  judgment  entered  for  the  defend- 
ant with  costs.  .  .  . 

If  anything  is  clear  on  the  evidence,  it  seems  to  me  to  be  this  — 
that  the  defendant  was  bent,  and  bent  exclusively,  on  the  object  of 
fiiithcring  the  interests  of  those  he  represented  in  all  he  did  —  that 
this  was  his  motive  of  action,  and  not  a  desire,  to  use  the  words  of 
the  learned  judge,  "to  do  mischief  to  the  plaintiffs  in  their  lawful 
calling." 

The  case  was  one  of  competition  in  labour,  which,  in  my  opinion, 
is  in  all  essentials  analogous  to  competition  in  trade,  and  to  w'hich 


i 


SECT.   IV]  STRIKES    TO    UNIONIZE    SHOPS  285 

the  .same  principles  luu.st  apply;  and  1  a.sk  myself  what  would  1^.' 
the  thought  of  the  applieation  of  the  word  "malicious"  to  the  eon- 
duct  of  a  tradesman  who  induces  the  customer  of  another  trades- 
man to  c(!:is(,'  makinj^  pincliases  from  one  witii  whom  lie  had  long 
dealt,  and  inst(;ad  to  deal  with  him,  a  rival  in  trade.  The  ca.se  Ix?- 
fore  the  jury  vva.s,  in  my  view,  in  no  way  dilTerent,  except  tliat  in  the 
one  case  there  was  competition  in  labour  —  in  the  other  there  would 
he  comiM'tition  in  trade. 

Some  of  the  learned  consulted  judges  sjx'ak  of  Allen's  conduct 
as  having  been  cau.sed  by  a  d(;sire  to  inflict  "punishment"  on  the 
shipwrights  for  past  acts,  and  indicatf;  that,  if  the  shipwrights  had 
been  actually  working  at  ironwork  on  the  vessel  at  the  time,  the 
case  would  have  bc(;n  dilTenMit.  I  (laiuiot  agree  in  any  such  view. 
"Punishment"  in  a  wide  and  popular  .sense  may  po.ssibly  be  u.-^ed, 
though  incorrectly,  to  describe  the  boiler-makers'  action;  but  it  is 
quit<!  clear  that  what  they  were  re.solvisd  to  do,  and  really  did,  was, 
while  marking  their  sense  of  the  injury  which  they  thought  (rightly 
or  wrongly  is  not  the  (iU(>stion)  the  shipwrights  were  doing  to  them 
in  trenching  on  their  proper  line  of  busiiu^.ss,  to  take  a  practical  meas- 
ure in  their  own  defence.  Their  object  was  to  benefit  them.selves 
in  their  own  business  as  working  boiler-nakers,  and  to  prevent  a 
recurrence  in  the  futun;  of  what  they  considered  an  improper  in- 
vasion on  their  special  dtM^artment  of  work.  How  this  could  pos- 
sibly be  regarded  as  "malicious,"  even  in  any  secondary  sense  that 
can  reasonably  be  attributed  to  that  tern,  I  cannot  see.  .  .  . 

Coming  now  directly  to  the  merits  of  the  question  in  controversy 
in  the  case,  the  argument  of  tlie  plaintifTs  and  the  rea.sons  for  the 
opinions  of  the  majority  of  the  consulted  judges  seem  to  me  to  fail, 
because,  although  it  is  no  doubt  true  that  the  plaintiffs  were  entitled 
to  pursue  their  trade  as  workmen  "without  hindrance,"  their  right 
to  do  .so  was  qualified  by  an  equal  riglit,  and  indeed  the  same  right, 
on  the  part  of  other  workmen.  The  hindrance  must  not  l)e  of  an 
unlawful  character.  It  must  not  be  by  unlawful  action.  Amongst 
the  rights  of  all  workmen  is  the  right  of  competition.  In  the  like 
manner  and  to  the  same  extent  as  a  workman  has  a  right  to  pursue 
his  work  or  lal)our  witliout  hindrance,  a  trader  has  a  right  to  trade 
without  hindrance.  That  right  is  subject  to  the  right  of  others  to 
trade  also,  and  to  subject  him  to  competition  —  eomjx^tition  which 
is  in  itself  lawful,  and  which  cannot  be  complained  of  where  no 
unlawful  m(\ins  (in  the  .sense  I  have  already  exj^laincMJ)  have  Ix'en 
(Muployed.  The  matter  has  been  settled  in  ."^o  far  as  comiM'tition 
in  trade  is  concerned  i)v  the  judgment  of  this  Hou.se  in  the  Mogul 
Steamship  Co.  Case,  [1892]  A.  C.  25.  I  can  see  no  reason  for  saying 
that  a  different  principle  should  apply  to  comp«'tition  in  labour.  In 
the  course  of  such  comp(>tition,  and  with  a  view  to  secure  an  advan- 
tage to  himself.  I  can  find  no  rea.son  for  saying  that  a  workman  is 
not  within  iiis  legal  rights  in  resolving  that  he  will  decline  to  work 


286  LEGALITY   OF   ENDS   PURSUED  [CHAP.  V 

in  the  same  emplo>Tnent  with  certain  other  persons,  and  in  intimat- 
ing that  resohition  to  his  employers.^  .  .  . 

Order  of  the  Court  of  Appeal  reversed  and  jiidijment  entered  for  the 
appellant  with  costs  here  and  beloio  including  the  costs  of  the 
trial;  cause  remitted  to  the  Queen's  Bench  Division. 


QUINN  V.  LEATHEM 

House  of  Lords.     1901 

[1901]  A.  C.  495 

This  was  an  action,  tried  before  FitzGibbon,  L.  J.,  at  the  Bel- 
fast Summer  Assizes,  1896,  brought  against  the  defendants  for 
damages  for  maHciously  and  wrongfully  procuring  certain  persons 
to  break  contracts  into  which  they  had  entered  with  the  plaintiff, 
and  not  to  enter  into  other  contracts  with  the  plaintiff;  and  for 
maliciously  and  wrongfully  enticing  and  procuring  certain  work- 
men in  the  employment  of  such  persons  to  leave  the  service  of  their 
employers,  and  to  break  their  contracts  of  service,  with  intent  to 
injure  the  plaintiff,  and  to  prevent  such  persons  from  carrying  out 
their  contracts  with  the  plaintiff,  and  from  entering  into  other  con- 
tracts with  the  plaintiff;  and  for  maliciously  and  wrongfully  in- 
timidating such  persons,  and  coercing  them  to  break  their  contracts 
with  the  plaintiff,  and  not  to  enter  into  other  contracts  with  the 
plaintiff;  and  intimidating  such  servants  in  their  employ,  and  coerc- 
ing them  to  leave  the  service  of  their  employers,  to  the  injury  of  the 
plaintiff;  and  for  unlawfully  conspiring,  together  with  other  per- 
sons, to  do  the  acts  aforesaid,  with  intent  to  injure  the  plaintiff.  .  .  . 

The  following  facts  were  proved.  The  plaintiff  was  a  butcher  at 
Lisburn,  in  the  county  of  Antrim,  about  eight  miles  from  Belfast, 
where  he  had  carried  on  business  for  a  number  of  years.  He  had  in 
his  employment  one  Robert  Dickie,  his  foreman,  who  had  been  with 
him  for  ten  years.  The  plaintiff  had  been  in  the  habit  of  sending 
large  quantities  of  meat  to  Andrew  Munce,  a  butcher  in  Belfast, 
and  had  been  doing  so  for  some  twenty  years.  There  was  no  con- 
tract in  writing  between  them;  but,  whatever  amount  the  plaintiff 
sent,  Munce  took  and  paid  for  —  the  amount  being,  on  an  average, 
of  the  value  of  £30  a  week. 

The  defendants  John  Craig,  John  Davey,  and  Joseph  Quinn, 
were  butchers'  assistants  in  Belfast;  and  the  defendants,  Henry 
Dornan  and  Robert  Shaw,  butchers'  assistants  in  Lisburn.  In  the 
spring  of  1895  these  defendants  and  several  others  in  the  same  oc- 
cupation formed  themselves  into  an  association,  which  was  duly 
registered  under  the  Trade  Union  Acts,  1871  and  1876,  under  the  title 

'  Tho,  opinions  of  Tvord  Ashbourno  and  Lord  Morris,  concurring  with  Lord 
Halsbiiry,  and  those  of  Lord  Davoy  and  Lord  James  of  Hereford,  in  favor  of 
reversing  the  order  of  the  Court  of  Appeal  are  omitted.  —  Ed. 


SECT.  IV]  STRIKES    TO    UNIONIZE   SHOPS  287 

of  "The  Belfast  Journeymen  Butchers  Assistants'  Association,"  of 
which  the  defendant  Davey  became  tlie  secretary.  Tlie  phiinlifT's 
men  were  not  memlxjrs  of  tlie  association.  At  the  counnencciuent 
of  July,  1S95,  tlie  defendants'  association  n^juired  the  plaintiff  to 
dismi.ss  Robert  Dickie  from  his  cniploymcnt,  which  In*  refused  to 
do.  Upon  that  the  defendants'  society  tiucatened  to  withdraw  the 
plaintiff's  men  from  his  service.  A  (le{)utation  was  sent  down  to 
meet  the  plaintiff  at  Lisburn,  and  a  meetinj^  was  held  in  Magill's 
public-house,  Lisburn,  on  the  9th  July,  at  which  the  defendants 
Craig,  (^uiiin,  Dmnan,  and  Sliaw  were  present  — Craij^  being  in  th(? 
chair.  The  plaintiff  stated  that  he  had  come  on  behalf  of  his  men, 
and  was  ready  to  pay  all  fines  and  demands  against  them,  and  asked 
to  have  them  admitted  into  the  society.  The  defendant  Shaw  ob- 
jected, aiul  said  tliat  the  plaintiff's  men  should  be  punislied,  and 
should  be  |)ut  out  to  walk  the  streets  for  twelve  months.  The  f)lain- 
tiff  objected  to  this,  ius  Dickie  was  a  married  man  with  a  family. 
Shaw  moved  and  Morgan  seconded  a  resolution  that  the  plaintiff's 
assistants  should  be  called  out,  and  it  was  carried.  The  defend- 
ants stated  that  they  could  pick  out  plenty  of  men  to  work  for  the 
plaintiff  from  their  list;  the  plaintiff  replied  that  they  were  not 
suitable  for  his  business,  and  refu.sed  to  put  his  own  men  out.  Craig 
then  said  that  the  plaintiff's  meat  would  be  stopjxHl  at  Munce's,  if 
the  plaintiff  woulil  not  (■onii)ly  with  their  wishes.  The  plaintiff 
still  refusetl.  The  defendants  then  called  out  some  of  the  jjjain- 
tiff's  employees.  Edward  Dickie,  a  servant  of  the  plaintiff  wiis 
brought  to  a  meeting  of  the  defendants'  society,  held  over  Dornan's 
shop  in  Lisl)urn,  and  was  ordered  to  leave  the  plaintiff,  the  society 
undertaking  to  pay  him  the  same  wages  as  he  had  been  receiving 
from  the  plaintiff.  Dickie,  yielding  to  this  order,  left  the  plaintiff 
without  notice.  .  .  . 

On  the  18th  September,  Davey  wrote  to  Andrew  Munce: 
"Have  submitted  your  letter  to  conmiittee.  They  are  of  opinion 
that  in  the  main  it  is  unsatisfactory,  l)ut  thanking  you  kindly  for 
your  recommendation  to  Mr.  Leathem,  with  whom  we  have  en- 
deavoured to  make  a  satisfactory  arrangement,  but  have  failed,  so 
therefore  have  no  other  alternative  but  to  instruct  your  employees 
to  cease  work  immediately  Leathem's  beef  arrives." 

On  the  19th  September  Munce  telegraphed  to  Leathem: 
"Unless  you  arrange  with  society  you  need  not  send  any  l)eef  this 
week,  as  men  are  ordered  to  quit  work." 

Munce  ceased  to  deal  with  the  plaintiff,  and  tlu^  plaintiff  was 
obliged  to  .sell  off  the  meat  he  had  on  hand  at  a  heavy  lo.ss  at  any 
price  he  could  get.  In  consequence  of  these  transactions  the  plain- 
tiff's business  was  ruined. 

The  case  was  tried  before  Fitzdibbon.  L.  .1..  at  the  Sununer 
Assizes  of  1S9(),  at  Belfast.  The  defendants  did  not  offer  any  evi- 
dence, their  counsel  asking  for  a  direction  on  the  gnMuids,  —  1,  that 


288  LEGALITY   OF   ENDS   PURSUED  [CHAP.  V 

tO  sustain  the  action  a  contract  made  with  Leathern  must  be  proved 
to  have  been  made  and  broken  through  the  acts  of  the  defendants, 
and  that  there  was  no  evidence  of  such  contract  or  breach;  2,  that 
there  was  no  evidence  of  pecuniary  damage  to  the  plaintiff  through 
the  acts  of  the  defendants;  3,  that  the  ends  of  the  defendants  and 
the  means  taken  by  them  to  promote  those  ends  as  appearing  in 
evidence  were  legitimate,  and  there  was  no  evidence  of  actual  dam- 
age to  the  plaintiff. 

The  learned  Lord  Justice  decUned  to  withdraw  the  case  from  the 
jury,  and  left  to  them  the  following  questions : 

1.  Did  the  defendants,  or  any  of  them,  wrongfully  and  mahciously 
induce  the  customers  or  servants  of  the  plaintiff  named  in  the  evi- 
dence to  refuse  to  deal  with  the  plaintiff?  —  Answ€7':  Yes. 

2.  Did  the  defendants,  or  any  two  or  more  of  them,  maliciously 
conspire  to  induce  the  plaintiff's  customers  or  servants  named  in 
the  evidence,  or  any  of  them,  not  to  deal  with  the  plaintiff  or  not 
to  continue  in  his  employment;  and  were  such  persons  so  induced 
not  so  to  do  ?  —  Answer:  Yes.   .  .  . 

FitzGibbon,  L.  J.,  in  summing  up,  told  the  jury  that  pecuniary 
loss,  directly  caused  by  the  conduct  of  the  defendants,  must  be 
proved  in  order  to  establish  a  cause  of  action,  and  he  advised  them 
to  require  to  be  satisfied  that  such  loss  to  a  substantial  amount  had 
been  proved  by  the  plaintiff.  He  declined  to  tell  them  that,  if  actual 
and  substantial  pecuniary  loss  was  proved  to  have  been  directly 
caused  to  the  plaintiff  by  the  wrongful  acts  of  the  defendants,  they 
were  bound  to  limit  the  amount  of  damages  to  the  precise  sum  so 
proved.  He  told  them  that,  if  the  plaintiff  gave  the  proof  of  actual 
and  substantial  loss  necessary  to  maintain  the  action,  they  were  at 
liberty  in  assessing  damages  to  take  all  the  circumstances  of  the 
case,  including  the  conduct  of  the  defendants,  reasonably  into  ac- 
count. The  Lord  Justice  did  not  tell  the  jury  that  the  liability  of 
the  defendants  depended  on  any  question  of  law.  He  told  them 
that  the  questions  left  to  them  were  questions  of  fact  to  be  deter- 
mined on  the  evidence,  but  that  they  included  questions  as  to  the 
intent  of  the  defendants,  and,  in  particular,  their  intent  to  injure 
the  plaintiff  in  his  trade  as  distinguished  from  the  intent  of  legit- 
imately advancing  their  own  interests.  The  Lord  Justice  did  not 
tell  the  jury  that  the  defendants  could  be  directly  asked  what  their 
own  intention  was,  ])ut  he  did  tell  tliem  that  their  intention  was  to 
})('  inferred  from  their  acts  and  conduct  as  pioved,  and  that,  in  act- 
ing upon  the  evidence  given  by  the  plaintiff,  they  were  at  liberty 
to  have  regard  to  the  fact  that  the  defendants,  who  might  have  given 
the  best  evidence  on  the  subject,  had  not  been  produced  to  (>xplain, 
(|u:ilify,  or  contradict,  any  of  the  evidcnc(>  given  for  the  pl:iin1iff  as 
to  tli(>ir  own  acts.  Upon  the  meaning  of  the  words  "wrongfully  and 
maliciously"  in  the  questions,  the  Lord  Justice  told  the  jury  that 
they  hnd  to  consider  whet  her  iho  intent  anrl  actions  of  tlic  (l(>f(Midants 


SECT.  IV]  STRIKES    TO    UN'IONIZK    SHOPS  289 

went  iMiycMid  llic  liiiits  wliidi  \v(jiil(l  ikjI  Ijc  actionable,  namely, 
se  urin.?  o.-  arlv-incinK  tlii-ir  own  interests,  or  thos<;  of  tln'lr  trade, 
by  reasonable  means,  including  lawful  combination,  or  whether 
their  acts,  as  proved,  were  intended  and  calculated  to  injure  the 
plaintiff  in  his  trade,  throuj^h  a  combination,  and  with  a  conunon 
purpose,  to  prevent  the  free  action  of  his  customers  and  servants 
in  dealinj^  with  him,  with  the  effect  of  actually  injuring;  him  a.s  dis- 
tinguished from  acts  lep;itimately  done  to  secure  or  advance  their 
own  interests.  Finally  he  told  the  jury  that  acts  dcjiie  with  the 
obj(H't  of  increasing;  tlie  profits  or  raisiiifi;  the  wa{!;es  of  any  combina- 
tion of  persons  such  as  the  society  to  which  the  defen<lants  lx'lonn<'d, 
whether  employers  or  employed,  by  reasonable  and  legitimate 
means,  were  perfectly  lawful  and  were  not  actionable  so  lonn  as  no 
wron^;ful  act  was  maliciously  —  that  is  intentionally  —  done  to 
injure  a  third  party.  To  constitute  such  a  wrongful  act  for  the 
purposes  of  this  ciuse,  the  Lord  Justice  told  the  jury  that  they  must 
be  satisfied  that  there  had  been  a  conspiracy,  a  common  intention, 
and  a  combination,  on  the  part  of  the  defendants  to  injure  the  plain- 
tiff in  his  business,  and  that  acts  must  be  i)roved  to  have  been  dono, 
by  the  defendants  in  furtherance  of  that  intention  which  had  in- 
flicted actual  money  loss  upon  the  plaintiff  in  his  trade;  and  that 
whether  the  acts  of  the  defendants  were  or  were  not  in  that  sense 
actionable,  wiis  the  (juestion  which  the  jury  had  to  try  upon  the 
evidence. 

The  jury  found  for  the  plaintiff  with  £250  damages,  of  which  1*50 
was  .separately  a.s.sesscd  for  damages  on  the  cause  of  action  relating 
to  the  "black  list,"  and  £2{)()  for  damages  on  the  other  caases  of 
action;  and  judgment  was  thereupon  entered  for  the  plaintiff  for 
£250  damages  and  costs. 

The  dr^fendants  now  moved  to  set  aside  the  v(>rdict  and  judg- 
ment so  had,  and  that  judgment  should  be  entered  for  them  on  the 
ground  of  misdirection;  or  for  a  new  trial,  on  the  ground  that  the 
damages  were  excessive.'   .  .   . 

In  the  Irish  Court  of  Appeal  (Lord  Ashbourne,  L.  C,  Porter, 
M.  R.,  Walker  and  Holmes,  L.  J.I.)  the  decision  below  was  affirmed 
with  costs,  the  judgment  for  the  plaintiff  being  amended  by  omitting 
the  part  Jis  to  the  recovery  of  50/.  damages.  (Juinn  alone  lirought 
the  present  appeal.  .  .  . 

Aug.  5.  Earl  of  H.^lsburv,  L.  C-  My  Lords,  in  this  ca.se  the 
plaintiff  has  by  a  properly  franuMl  statement  of  claim  complained 
of  the  defendants,  and  proved  to  the  satisfaction  of  a  jury  that  the 

>  This  statement  of  fart  is  taken  from  the  report  of  the  ease  in  L.  R.,  Ireland 
(1S90),  2  (l  H.  iV-  Ex.  Div.  t)C,7. 

=  Only  coinparatively  l)rief  portions  of  thf  opinions  arc  niv»-n.  Separate 
opinions  in  favor  of  disinis-sinn  the  appeal  were  rendered  My  Ix)rd  Chancellor 
Halsbury,  and  hv  Ix)nls  Maenaghten,  Sliand,  Brampton,  Ilobertson,  and  Lindley. 
—  Eu.    ■ 


290  LEGALITY    OF   ENDS   PURSUED  [CHAP.  V 

defendants  have  wrongfully  and  maliciously  induced  customers 
and  servants  to  cease  to  deal  with  the  plaintiff,  that  the  defendants 
did  this  in  pursuance  of  a  conspiracy  framed  among  them,  that  in 
pursuance  of  the  same  conspiracy  they  induced  servants  of  the 
plaintiff  not  to  continue  in  the  plaintiff's  emplojnnent,  and  that  all 
this  was  done  with  malice  in  order  to  injure  the  plaintiff,  and  that 
it  did  injure  the  plaintiff.  If  upon  these  facts  so  found  the  plaintiff 
could  have  no  remedy  against  those  who  had  thus  injured  him,  it 
could  hardly  be  said  that  our  jurisprudence  was  that  of  a  civilized 
conmiunity,  nor  indeed  do  I  understand  that  any  one  has  doubted 
that,  before  the  decision  in  Allen  v.  Flood,  [1898]  A.  C.  1,  in  this 
House,  such  fact  would  have  established  a  cause  of  action  against 
the  defendants.  .  .  . 

Now,  the  hypothesis  of  fact  upon  which  Allen  v.  Flood  was  decided 
by  a  majority  in  this  House  was  that  the  defendant  there  neither 
uttered  nor  carried  into  effect  any  threat  at  all:  he  simply  warned 
the  plaintiff's  employers  of  what  the  men  themselves,  without  his 
persuasion  or  influence,  had  determined  to  do,  and  it  was  certainly 
proved  that  no  resolution  of  the  trade  union  had  been  arrived  at  at 
all,  and  that  the  trade  union  official  had  no  authority  himself  to  call 
out  the  men,  which  in  that  case  was  argued  to  be  the  threat  which 
coerced  the  employers  to  discharge  the  plaintiff.  It  was  further  an 
element  in  the  decision  that  there  was  no  case  of  conspiracy  or  even 
combination.  What  was  alleged  to  be  done  was  only  the  independ- 
ent and  single  action  of  the  defendant,  actuated  in  what  he  did  by 
the  desire  to  express  his  own  views  in  favour  of  his  fellow  mem- 
bers. .  .  . 

Now,  in  this  case  it  cannot  be  denied  that  if  the  verdict  stands 
there  was  conspiracy,  threats,  and  threats  carried  into  execution, 
so  that  loss  of  business  and  interference  with  the  plaintiff's  legal 
rights  are  abundantly  proved.  .  .  .  This  case  is  distinguished  in 
its  facts  from  those  which  were  the  essentially  important  facts  in 
Allen  V.  Flood.  .  .  . 

Lord  Macnaghten,  ...  I  do  not  think  that  the  acts  done  by 
the  defendants  were  done  "in  contemplation  or  furtherance  of  a 
trade  dispute  between  employers  and  workmen."  So  far  as  I  can 
see,  there  was  no  trade  dispute  at  all.  Leathem  had  no  difference 
with  his  men.  They  had  no  quarrel  with  him.  For  his  part  he  was 
quite  willing  that  all  his  men  should  join  the  union.  He  offered  to 
pay  their  fines  and  entrance  moneys.  What  he  objected  to  was  a 
cruel  punishment  proposed  to  be  inflicted  on  some  of  his  men  for 
not  having  joined  the  union  sooner.  There  was  certainly  no  trade 
dispute  in  the  case  of  Mvmce.  But  the  defendants  conspired  to  do 
harm  to  Munco  in  order  to  compel  him  to  do  harm  to  Leathem,  and 
so  enable  them  to  wreak  their  vengeance  on  Leathem's  servants 
who  were  not  members  of  the  union. 

I  also  think  that  the  provision  in  the  Conspiracy  and  Protection 


I 


SECT.  IV]  STRIKES   TO    L'MUMZE    .SUUl'S  291 

of  Property  Act,  1875,  which  says  that  in  certain  cases  an  agree- 
ment or  combination  is  not  to  be  "indictaljle  as  a  conspiracy,"  has 
nothinf^  to  do  with  civil  remedies.   .   .   . 

Loiii)  Shand.  .  .  .  As  to  tlif  vital  distinction  Ix'twecn  Alltn  v. 
Flood  and  the  pit-sent  case,  it  nuiy  Ix'  stated  in  a  single  sentenee. 
In  Allen  /'.  Flootl  the  purpose  of  the  defendant  was  by  the  acts  com- 
plained of  to  promote  his  own  trade  interest,  which  it  was  lield  he 
was  entitle(l  to  do,  although  injurious  U)  his  c(jnii)etit<jrs,  whereas 
in  the  present  case,  while  it  is  clear  there  was  eonibination,  the  pur- 
pose of  the  tlefendants  was  "to  injure  the  plaintiff  in  his  trade  as 
distinguished  from  the  intention  of  legitimately  advancing  their 
own  interests."  .  ,  . 

T\u)  ground  of  judgment  of  the  majority  of  the  H(juse,  however 
varied  in  expression  by  their  Lor(lslii|)s,  wjus,  as  it  appears  t<j  n»e, 
that  Allen  in  what  he  said  and  did  was  only  exercising  the  right  of 
himself  and  his  fellow  workmen  as  competitors  in  the  lalxjur  mar- 
ket, and  the  effect  of  injury  thus  cau.sed  to  others  from  such  com- 
petition, which  was  legitimate,  was  not  a  legal  wrong. 

It  is  only  neces.sary  to  add  that  the  defendants  here  have  no  such 
defence  as  legitimate  trade  competition.  Tlieii-  acts  were  wrongful 
and  malicious  in  the  sen.se  found  l)y  the  jury  —  that  is  to  say,  they 
acted  by  conspiracy,  not  for  any  purpose  of  advancing  their  own 
interests* as  workmen,  but  for  the  .sole  purjx)se  of  injuring  the  plain- 
tiff in  his  tratle.  I  am  of  opinion  that  the  law  prohibits  such  acts 
as  unjustifiable  and  illegal;  that  by  so  acting  the  defendants  were 
guilty  of  a  clear  violation  of  the  rights  of  the  plaintifT,  with  the  re- 
sult of  causing  serious  injury  to  him,  and  that  the  ca.se  of  Allen  v. 
Flood,  as  a  ciuse  of  legitimate  competition  in  the  labour  market,  is 
essentially  different,  and  gives  no  ground  for  the  defendant's  argu- 
ment. 

I  concur  witii  your  Ijordsiiips  in  holding  that  there  is  not  sufficient 
ground  for  disturl)ing  the  vei'dict  on  tiie  (juestion  of  damages,  antl 
in  holding  that  the  special  provision  of  the  3d  section  of  the  Con- 
spiracy Act  of  1875  has  no  ai)[)li('ation  to  the  circumstances  of  this 
case.  .  .  . 

Lord  Brampton.  ...  In  this  case  the  allegeil  cause  of  action 
is  very  different  from  that  in  Allen  r.  Flood.  It  is  not  de|HMid<'nt 
upon  coercion  to  break  any  particular  contract  or  contracts,  though 
such  cau-ses  of  action  are  introduced  into  the  claim;  but  the  real 
and  sulwtantial  cause  of  action  is  an  unlawful  conspiracy  to  molest 
the  plaintiff,  a  trader  in  carrying  on  his  business,  and  by  so  doing 
to  invade  his  undoubted  right,  thus  de.scriiK'd  by  Aldei-son,  B.,  in 
delivering  the  judgment  of  the  Exchequer  ChamU'r  in  Hilton  r. 
Eckersley,  6  E.  &:  B.  74:  ''  Prima  fucie  it  is  the  privilege  of  a  trader 
in  a  free  country  in  all  matters  not  contrary  to  law  to  regulat**  his 
own  mode  of  carrying  it  on  according  to  his  own  discretion  and 
choice.     If  the  law  has  in  any  matter  reuulated  or  restrained  his 


292  LEGALITY    OF   ENDS    PURSUED  [CHAP.  V 

mode  of  doing  this,  the  law  must  be  obeyed.  But  no  power  short 
of  the  general  law  ought  to  restrain  his  free  discretion."  .  .  . 

I  cannot  suppose  any  intelligent  person  reading  the  evidence 
adduced  on  the  trial  of  this  case  failing  to  come  to  the  conclusion 
that  the  acts  complained  of  amounted  to  a  serious  and  wrongful 
invasion  of  the  plaintiff's  trade  rights,  and  I  am  at  a  loss  to  com- 
prehend upon  what  ground  it  is  that  the  defendants  seek  to  justify 
or  excuse  their  action  towards  him.  .  .  . 

My  noble  friend,  the  Lord  Chancellor,  accurately  summed  up 
the  position  of  things  in  the  Mogul  Case,  [1892]  A.  C.  25,  in  these 
words:  "What  legal  right  was  interfered  with?  What  coercion  of 
the  mind,  will,  or  person  is  effected?  All  are  free  to  trade  on  what 
terms  they  will,  and  nothing  has  been  done  except  in  rival  trading 
which  could  be  supposed  to  interfere  with  the  appellant's  interests." 

But  I  will  not  linger  upon  a  consideration  of  what  may  be  done 
in  competition,  for  competition  is  not  even  suggested  as  a  justifica- 
tion of  the  acts  now  complained  of  —  acts  of  wanton  aggression  the 
outcome  of  a  malicious  but  successful  conspiracy  to  harm  the  plain- 
tiff in  his  trade. 

It  cannot  be  —  it  was  not  even  suggested  —  that  these  acts  were 
done  in  furtherance  of  any  of  the  lawful  objects  of  the  association 
as  set  forth  in  their  registered  rules,  according  to  the  statutoiy  re- 
quirement, or  in  support  of  any  lawful  right  of  the  association  or 
any  member  of  it,  or  to  obtain  or  maintain  fair  hours  of  labour  or 
fair  wages,  or  to  promote  a  good  understanding  between  employers 
and  employed  and  workman  and  workman,  or  for  the  settlement 
of  any  dispute,  for  none  had  existence.  It  would,  indeed,  be  a  strange 
mode  of  promoting  such  good  understanding  to  coerce  a  tradesman's 
customers  to  leave  him  because  he  would  not,  at  the  bidding  of  the 
association,  dismiss  workmen  who  desired  to  continue  in  his  service 
and  whom  he  wished  to  retain  to  make  way  for  others  he  did  not 
want. 

I  will  deal  now  with  the  conspiracy  part  of  the  claim.  .  .  . 

It  has  often  been  debated  whether,  assuming  the  existence  of  a 
conspiracy  to  do  a  wrongful  and  harmful  act  towards  another  and 
to  carry  it  out  by  a  number  of  overt  acts,  no  one  of  which  taken 
singly  and  alone  would,  if  done  by  one  individual  acting  alone  and 
apart  from  any  conspiracy,  constitute  a  cause  of  action,  such  acts 
would  beccwne  unlawful  or  actionable  if  done  by  the  conspirators 
acting  jointly  or  severally  in  pursuance  of  their  conspiracy,  and  if 
by  those  acts  substantial  damage  was  caused  to  the  person  against 
whom  the  conspiracy  was  directed:  my  own  opinion  is  that  they 
would.  ...  It  is  at  all  times  a  painful  thing  for  any  individual  1o 
be  the  object  of  the  hatred,  spite,  and  ill-will  of  any  one  who  seeks 
to  do  him  harm.  But  that  is  as  notliing  compared  to  the  danger 
and  alarm  created  by  a  conspiracy  formed  by  a  number  of  unscru- 
pulous enemies  acting  under  an  illegal  compact,  together  and  sep- 


SECT.  IV]  STRIKES   TO    UNIONIZE    SHOPS  293 

arately,  as  often  as  opportunity  occurs  regardless  of  law,  and  actuated 
by  malevolence,  to  injure  liiin  and  all  who  stand  ijy  him.  Such  a 
conspiracy  is  a  powerful  and  dangerous  engine,  which  in  this  ciuse 
has,  I  think,  been  employed  by  the  defendants  for  the  |X'r{x,'tration 
of  ()v\r,:ui\/,c<\  ;ui(l  niiiioiis  oppression. 

I  think  tlic  jud^fUKTil  in  tlic  court  Im'Iow  ought  to  Ix'  affirmed  and 
this  appeal  disnii.s.scd  with  costs.   .  ,   . 

Loud  Lixolky.  My  Lords,  the  cjus<'  of  Allen  v.  F1o<k1  has  so  im- 
portant a  bearing  on  the  present  appeal  that  it  is  necessary  to  as- 
certain exactly  what  tliis  House  really  decided  in  that  celebrated 
case.  .  .  . 

My  Lords,  this  decision,  as  I  understand  it,  establishes  two  prop- 
ositions: one  a  far-reaching  and  extremely  imijortant  proposition 
of  law,  and  th(*  other  a  comparatively  unimportant  projKJsition  of 
mixed  law  and  fact,  useful  ;is  a  guide,  hut  of  a  very  ditTerent  char- 
acter from  the  first. 

The  first  and  important  proposition  is  that  an  act  otherwise  law- 
ful, although  harmful,  does  not  become  actionable  by  lx?ing  done 
maliciously  in  the  sens(>  of  proceetling  from  a  l)ad  motive,  and  with 
intent  to  annoy  or  harm  anoth(>r.  This  is  a  legal  doctrine  not  new 
or  laid  down  for  the  first  time  in  Allen  v.  Flood;  it  had  been  gaining 
ground  for  some  time,  but  it  was  never  before  so  fully  and  authori- 
tatively expounded  ;is  in  that  case.  In  applying  this  proposition 
care,  however,  must  be  taken  to  bear  in  mind,  first,  that  in  Allen  v. 
Flood  criminal  responsil)ility  had  not  to  l^e  considered.  It  would 
revolutionise  criminal  law  to  say  that  the  criminal  responsibility 
for  conduct  never  depends  on  intention.  Secondly,  it  must  ix;  borne 
in  mind  that  even  in  considering  a  person's  liability  to  civil  proceeil- 
ings  tlie  proposition  in  (luestion  only  applies  to  "acts  otherwi.se 
lawful,"  i.  e.,  to  acts  involving  no  breach  of  duty,  or,  in  other  words, 
no  wrong  to  any  one.    I  shall  refer  to  this  matter  later  on. 

The  second  proposition  is  that  what  Allen  did  infringed  no  right 
of  the  plaintiffs,  even  altiiough  he  acted  maliciously  aiul  with  a 
view  to  injure  the  n.  I  have  already  stated  what  he  did,  and  all  that 
he  did,  in  the  opinion  of  the  majority  of  the  noble  Lords.  If  their 
view  of  the  facts  was  correct,  their  conclusion  that  Allen  infringed 
no  right  of  the  plaintiffs  is  perfectly  intelligible,  and  indeed  unavoid- 
able. Truly,  to  inform  a  person  that  others  will  annoy  or  injure 
him  unless  he  acts  in  a  particular  way  cannot  of  itself  Ix^  action- 
able, whatever  the  motive  or  intention  of  the  informant  m:v>'  have 
been.  .  .  . 

I  will  p:Lss  now  to  the  facts  of  this  ca.se.  and  consider  (1)  wliat 
the  plaintiff's  rights  were;  (2)  what  the  defenflants'  conduct  was; 
(3)  whether  that  conduct  infringed  thi^  plaintiff's  rights.  For  the 
sake  of  clearness  it  will  Iw^  convenient  to  consider  the.so  questions  in 
the  first  place  apart  from  the  statute  wiiich  legalises  .strikes,  and  in 
the  next  place  with  reference  to  that  statute. 


294  LEGALITY    OF    ENDS    PURSUED  [CHAP.  V 

1.  As  to  the  plaintiff's  rights.  He  had  the  ordinary  rights  of  a 
British  subject.  He  was  at  liberty  to  earn  his  own  living  in  his  own 
wa}^  provided  he  did  not  violate  some  special  law  prohibiting  him 
from  so  doing,  and  provided  he  did  not  infringe  the  rights  of  other 
people.  This  liberty  involved  liberty  to  deal  with  other  persons 
who  were  willing  to  deal  with  him.  This  liberty  is  a  right  recognised 
by  law;  its  correlative  is  the  general  duty  of  every  one  not  to  pre- 
vent the  free  exercise  of  this  libertj^  except  so  far  as  his  ow'n  liberty 
of  action  may  justify  liim  in  so  doing.  But  a  person's  liberty  or 
right  to  deal  with  others  is  nugatory,  unless  they  are  at  liberty  to 
deal  with  him  if  they  choose  to  do  so.  Any  interference  with  their 
liberty  to  deal  with  him  affects  him.  If  such  interference  is  justi- 
fiable in  point  of  law,  he  has  no  redress.  Again,  if  such  interference 
is  wrongful,  the  only  person  who  can  sue  in  respect  of  it  is,  as  a  rule, 
the  person  immediately  affected  by  it;  another  who  suffers  by  it 
has  usuall}'  no  redress;  the  damage  to  him  is  too  remote,  and  it 
would  be  obviously  practically  impossible  and  highly  inconvenient 
to  give  legal  redress  to  all  who  suffered  from  such  wrongs.  But  if 
the  interference  is  wrongful  and  is  intended  to  damage  a  third  per- 
son, and  he  is  damaged  in  fact  —  in  other  words,  if  he  is  wrongfully 
and  intentionally  struck  at  through  others,  and  is  thereby  damnified 
—  the  whole  aspect  of  the  case  is  changed :  the  wrong  done  to  others 
reaches  him,  his  rights  are  infringed  although  indirectly,  and  dam- 
age to  him  is  not  remote  or  unforeseen,  but  is  the  direct  consequence 
of  what  has  been  done.  Our  law,  as  I  understand  it,  is  not  so  defec- 
tive as  to  refuse  him  a  remedy  by  an  action  under  such  circumstances. 
The  cases  collected  in  the  old  books  on  actions  on  the  case,  and  the 
illustrations  given  by  the  late  Bowen,  L.  J.,  in  his  admirable  judg- 
ment in  the  Mogul  Steamship  Co.'s  Case,  23  Q.  B.  D.  613,  614,  may 
be  referred  to  in  support  of  the  foregoing  conclusion,  and  I  do  not 
understand  the  decision  in  Allen  v.  Flood  to  be  opposed  to  it. 

If  the  above  reasoning  is  correct,  Lumley  v.  Gye,  2  E.  &  B.  216, 
was  rightly  decided,  as  I  am  of  opinion  it  clearly  was.  Further,- 
the  principle  involved  in  it  cannot  be  confined  to  inducements  to 
break  contracts  of  service,  nor  indeed  to  inducements  to  break  any 
contracts.  The  principle  which  underlies  the  decision  reaches  all 
wrongful  acts  done  intentionally  to  damage  a  particular  individual 
and  actually  damaging  him.   .   .  . 

2.  I  pass  on  to  consider  what  the  defendants  did.  The  appel- 
lant and  two  of  the  other  defendants  were  the  officers  of  a  trade 
union,  ant]  the  jury  have  found  that  the  defendants  wrongfully 
and  maliciously  induced  the  customers  of  the  plaintiff  to  refuse 
to  deal  with  him,  and  maliciously  conspired  to  induce  them  not 
to  deal  with  him.  There  were  similar  findings  as  to  inducing  serv- 
ants of  the  plaintiff  to  leave  him.  What  the  defendants  did  was 
to  threaten  to  call  out  the  union  workmen  of  the  plaintiff  and  of 
his  customers  if  he  would  not  discharge  some  non-union  men  in 


I 


SECT.  IV]  STRIKES    TO    UNIONIZE    SHOPS  295 

his  employ.  In  other  words,  in  onlci  to  coihim-I  the  i)hiiritiff  to  di«- 
charKO  some  of  his  men,  the  defendants  threatened  to  put  the  plain- 
tiff and  his  customers,  and  [X'rsons  hiwfully  working  for  th«'m,  to 
all  the  inconvenience  they  could  without  using  violence.  The  d<*- 
feridants'  conduct  wtus  the  more  reprchcnsihlc  iM-cnusf  the  phiintifT 
olTcrc(l  to  i)ay  the  fees  nece.s.sary  to  enable  his  non-union  men  to 
Ixicome  members  of  the  defendants'  union;  but  this  would  not 
satisfy  the  defendants.  The  fact.s  of  this  cjuse  are  entirely  diffen-nt 
from  those  which  this  Ilou.se  had  to  corjsider  in  Allen  /•.  Fhwjd.  In 
the  present  case  there  was  no  disput<'  iM'tween  tiie  jjlaintifT  and  hi^* 
men.  None  of  them  want<'d  U>  leave  his  emphjy.  Nor  wa.s  theni 
any  dispute  between  the  plaintiff's  customers  and  their  own  men, 
nor  between  the  plaintiff  and  his  customers,  nor  between  the  men 
they  respectively  emploveil.   .   .   . 

3.  The  remainini^  (ju-'stion  is  whether  such  conduct  infringed  the 
plaintiff's  rights  so  as  to  giv(!  him  a  cause  of  action.  In  my  opini(jn, 
it  plainly  did.  The  defendants  weic  doing  a  great  deal  more  than 
exercising  their  own  rights;  they  were  dictating  to  the  i)laintiff  and 
his  customers  and  servants  what  they  were  to  do.  The  defendant.^ 
were  violating  their  duty  to  th(!  plaintiff  and  his  customers  and 
servants,  which  was  to  leave  them  in  the  undisturlKuI  enjoyment 
of  their  liberty  of  action  as  already  explained.  What  is  the  legal 
justification  or  excus"  for  such  conduct?  None  is  alleged,  and  none 
can  be  found.  This  vitjl  ition  of  duty  by  the  defendants  resulted 
in  damage  to  the  plaintiff  —  not  remote,  but  innnediate  and  in- 
tended. The  intention  to  injur;'  the  plaintiff  negatives  all  excuses 
and  disposes  of  any  question  of  remoteness  of  damage.  Vour  Lord- 
ships have  to  deal  with  a  case,  not  of  (hunnuin  absque  injuria,  but  of 
damnam  cum  injuria.  ...  In  this  countr}-  it  is  now  settled  by  the 
decision  of  this  House  in  the  case  of  the  Mogul  Steamship  Co.  that 
no  action  for  a  conspiracy  lies  against  persons  who  act  in  concert 
to  damage  anotiier  and  do  damage  him,  Init  who  at  the  .same  time 
merely  exerci.se  their  own  rights  and  who  infringe  no  rights  of  othcT 
people.  Allen  v.  Flood  emph:usi.ses  the  same  doctrine.  The  prin- 
ciple was  strikingly  illustrated  in  the  Scottish  Cooperative  Society 
t'.  Clasgow  Fleshers'  Association,  .35  Sc.  L.  R.  Mh,  which  was  re- 
ferred to  in  the  cours;>  of  the  argument.   .   .  . 

The  cardinal  point  of  distinction  between  .such  cases  and  the  pres- 
ent is  that  in  them,  although  damage  was  intentionally  inflicted  on 
the  plaintiffs,  no  one's  right  was  infringed  —  no  wrongful  act  was 
committed;  whilst  in  the  present  ca.sc  the  coercion  of  the  plaintiff's 
customers  and  servants,  and  of  the  i)laintiff  through  them.  wa.><  an 
infringement  of  their  liberty  as  W(>11  as  his,  and  was  wrongful  botli 
to  them  and  also  to  him,  as  I  have  already  endeavoured  to  shew. 

Intentional  damage  which  aris(>s  fi-om  the  mere  exercise  of  the 
rights  of  many  is  not,  I  apprehend.  actional)le  by  our  law  as  now 
settled.    To  hokl  the  contrary  wiiuld  be  unduly  to  restrict  the  liUMty 


296  LEGALITY   OF   ENDS   PURSUED  [CHAP.  V 

of  one  set  of  persons  in  order  to  uphold  the  Hberty  of  another  set. 
According  to  our  law,  competition,  with  all  its  drawbacks,  not  only 
"between  individuals,  but  between  associations,  and  between  them 
and  individuals,  is  permissible,  provided  nobody's  rights  are  in- 
fringed. The  law  is  the  same  for  all  persons,  whatever  their  calUngs: 
it  applies  to  masters  as  well  as  to  men;  the  proviso,  however,  is  all- 
important,  and  it  also  applies  to  both,  and  limits  the  rights  of  those 
who  combine  to  lock-out  as  well  as  the  rights  of  those  who  strike.  .  .  . 
I  pass  now  to  consider  the  effect  of  the  statute,  38  &  39  Vict.  c.  86.^ 
This  Act  clearly  recognises  the  legality  of  strikes  and  lock-outs  up  to 
a  certain  point.  It  is  plainly  legal  now  for  workmen  to  combine  not 
to  work  except  on  their  own  terms.  On  the  other  hand,  it  is  clearly 
illegal  for  them  or  any  one  else  to  use  force  or  threats  of  violence  to 
prevent  other  people  from  working  on  any  terms  which  they  think 
proper.  But  there  are  many  ways  short  of  violence,  or  the  threat  of 
it,  of  compelling  persons  to  act  in  a  way  which  they  do  not  like.  .  .  . 
Assuming  that  there  was  a  trade  dispute  within  the  meaning  of  sec.  3, 
and  that  an  indictment  for  conspiracy  could  not  be  sustained  in  a 
case  like  this,  the  difference  between  an  indictment  for  a  conspiracy 
and  an  action  for  damages  occasioned  by  a  conspirac}^  is  very  marked 
and  is  well-known.  An  illegal  agreement,  whether  carried  out  or  not, 
is  the  essential  element  in  a  criminal  case ;  the  damage  done  by  several 
persons  acting  in  concert,  and  not  the  criminal  conspiracy,  is  the  im- 
portant element  in  the  action  for  damages.^  In  my  opinion,  it  is  quite 
clear  that  sec.  3  has  no  application  to  civil  actions:  it  is  confined  en- 
tirely to  criminal  proceedings.  .  .  .  The  appellant  seeks  by  means 
of  Allen  V.  Flood,  and  by  logical  reasoning  based  upon  some  passages 
in  the  judgments  given  by  the  noble  Lords  who  decided  it,  to  drive 
your  Lordships  to  hold  that  boycotting  by  trades  unions  in  one  of  its 
most  objectionable  forms  is  lawful,  and  gives  no  cause  of  action  to 
its  victims  although  they  may  be  pecuniarity  ruined  thereby. 

My  Lords,  so  to  hold  would,  in  my  opinion,  be  contrary  to  well- 
settled  principles  of  English  law,  and  would  be  to  do  what  is  not  yet 
authorised  by  any  statute  or  legal  decision. 

In  my  opinion  this  appeal  ought  to  be  dismissed  with  costs. 

Order  appealed  from  affirmed  and  appeal  dismissed  with  costs. 


COMMONWEALTH  v.  HUNT 

Supreme  Judicial  Court  of  Massachusetts.     1842 

4  Melcalf,  111 

See  supra,  page  104,  for  a  report  of  the  case. 

^  See  siipra,  p.  23. 

2  Sec  1  Wm.  Saund.  229b,  230,  and  Barber  v.  Lesiter,  7  C.  B.  (n.  s.)  175. 


SECT.  IV]  STRIKES  TO  l.VIO.N'IZE  SHOPS  297 

BOWEX  V.  M.\riii:s()X 

Supreme  Judicial  Ccnur  of  Massachusetts.     1867 

14  Allen,  499 

ToKT.  Tlie  declarutiou  was  as  follows:  "And  the  plaintiff  says 
that  on  the  17th  day  of  July  current,  and  for  thirty  years  previous 
thereto,  he  had  foUcjwed  the  business  and  callinf^  of  shii)pinK-ina>!t('r 
and  agent  in  Hostxjn;  had  uc(juire(l  great  experience  therein,  jirnl  a 
numerous  and  valuable  set  of  customers  and  employers;  and,  from 
the  pursuit  thereof,  had  actjuired  great  gains,  and  had  established  a 
valuable  and  lucrative  business;  all  of  which  was  well  known  to  the 
defendants.  Yet  the  defendants  heretof(jre,  to  wit,  on  the  first  day 
of  June,  1803,  and  from  that  time  fcjrward  to  the  present  tinie,  un- 
lawfully and  maliciously  conspired  together,  and  with  others  whose 
names  are  to  the  plaintifT  unknown,  for  their  own  private  good  and 
ends,  and  to  injure  the  plaint itT  in  his  inisiness  and  calling,  and  to 
control  the  business  of  the  shipi)ing-masters  of  lioston,  fc^r  their  own 
private  good  and  ends,  by  compelling  them  to  ship  all  their  seamen 
from  them,  and  their  fellow-conspirators,  and  at  rates  established 
by  them,  and  to  destroy  the  business  and  calling  of  such  shipping- 
masters  and  agents  as  disregarded  their  terms,  rates  and  rules,  a  copy 
of  which  is  hereto  amiexed.  And  now  the  plaintiff  avers  that  he  dis- 
regarded said  conspirators,  and  their  rates  and  rules,  pursued  his 
said  business  as  aforetime,  and  according  to  law;  and  that  the  said 
defendants,  pursuing  their  saitl  conspiracy,  counselled  and  agreed 
among  themselves  and  their  fellow-conspirators  that  they  and  their 
fellow-conspirators  should  antl  would  prevent  the  plaintiff's  obtain- 
ing any  seamen  as  shipping-master,  and  counselled  and  agreed  among 
themselves,  as  aforesaiil,  to  refuse  to  ship  any  seamen  to  him  as 
shipping-master;  and  to  refuse  to  allow  any  seamen  boarding  at  their 
houses  to  ship  with  him  at  his  shipping-ofHce,  to  prevent  his  obtain- 
ing any  seamen;  to  prevent  any  seamen  going  in  any  ship  for  which 
he  was  acting  as  shipping-master  and  agent;  and  publicly  to  notify 
merchants  and  ship-masters  not  to  employ  him;  and  publicly  give 
notice  that  said  plaintiff  had  been  '  laid  on  the  shelf,'  meaning  thereby 
that  they,  the  said  conspirators  and  their  fellow-conspirators,  were 
acting  against  him,  as  aforesaid.  And  the  plaintiff  avers  that  the 
said  ilefendants,  with  their  fellow-ccMispirators  as  aforesaid,  in  pur- 
suance of  their  conspiracy  as  aforesaid,  did  each  and  every  of  the 
above  acts  and  things  against  the  plaintitT;  did  take  their  men  out 
of  ships  liecau.se  the  plaintiff's  meh  were  in  the  same;  did  refuse  to 
furnish  and  ship  men  to  him;  did  prevent  men  from  shipping  with 
him;  did  notify  the  |)ublic  that  they  had  laid  him  on  the  shelf:  did 
publicly  notify  his  customers  and  friends  that  he  could  not  ship  .sea- 
men for  them;  did  interfere  with  his  business,  as  aforesaid;  did  pre- 
vent his  getting  seamen  to  ship;    did  prevent  his  getting  employ  as 


298  LEGALITY   OF   ENDS   PURSUED  [CHAP.  V 

shipping-master;  and  did  break  up  the  plaintiff  in  his  business  and 
calling  by  their  conspiracy,  acts  and  doings,  as  aforesaid,  and  compel 
him  to  abandon  his  said  business."   .  .  . 

The  defendants  filed  a  general  demurrer;  and  the  case  was  re- 
served, by  Gray,  J.,  for  the  determination  of  the  whole  court. 

Chapman,  J.  The  gist  of  the  plaintiff's  action  is  not  the  con- 
spiracy alleged  in  the  declaration,  but  the  damage  done  to  the  plain- 
tiff by  the  alleged  acts  of  the  defendants;  and  the  averment  that 
the  acts  were  done  in  pursuance  of  a  conspirac}^  does  not  change 
the  nature  of  the  action.  Parker  v.  Huntington,  2  Gray,  124.  In 
order  to  be  good,  the  declaration  must  allege  against  the  defendants 
the  commission  of  illegal  acts.  Its  allegations  must  be  analyzed,  to 
ascertain  whether  they  contain  a  sufficient  statement  of  such  acts. 

The  first  allegation  as  to  what  they  did  is  very  loose  and  general, 
namely,  that,  in  pursuance  of  their  conspiracy  as  aforesaid,  thej^  did 
each  and  every  of  the  above  acts  and  things  against  the  plaintiff. 
Then  follows  an  enumeration  of  the  acts.  (1)  "Did  take  their  men 
out  of  ships  because  the  plaintiff's  men  were  in  the  same."  We  can- 
not see  that  this  act  is  in  itself  unlawful.  It  does  not  appear  that 
they  were  under  any  obligation  to  keep  their  men  on  board  the  same 
ship  with  the  plaintiff's  men,  or  violated  the  rights  of  the  plaintiff 
or  of  any  other  person  in  taking  them  out.  (2)  "Did  refuse  to  furnish 
and  ship  men  to  him."  Such  refusal  is  lawful  in  the  absence  of  any 
legal  obligation  to  furnish  and  ship  men  to  him,  and  no  such  obliga- 
tion is  stated.  (.S)  "Did  prevent  men  from  shipping  with  him." 
This  might  be  done  in  many  ways  which  are  lawful  and  proper,  and 
as  no  illegal  methods  are  stated  the  allegation  is  bad.  (4)  "Did 
notify  the  public  that  they  had  laid  him  on  the  shelf."  In  another 
part  of  the  declaration  this  is  alleged  to  mean  that  the  defendants 
"were  acting  against  him  as  aforesaid."  It  does  not  appear  to  be 
slanderous,  and  therefore  is  not  actionable.  (5)  "Did  publicly 
notify  his  customers  and  friends  that  he  could  not  ship  seamen  for 
them."  This  is  not  actionable,  because  it  does  not  appear  that  he 
had  a  right  to  ship  seamen  for  them.  (6)  "Did  interfere  with  his 
business  as  aforesaid;  did  prevent  his  getting  seamen  to  ship;  did 
prevent  his  getting  employ  as  shipping-master;  and  did  break  up 
the  plaintiff  in  his  business  and  calling  by  their  conspiracy,  acts  and 
doings,  as  aforesaid,  and  compel  him  to  abandon  his  said  business." 
All  this  adds  nothing  to  the  substantial  allegations  of  acts  done  by 
the  defendants,  but  is  to  be  regarded  as  alleging  the  consequences  of 
the  acts  before  alleged. 

If  we  look  at  the  allegations  of  acts  done  in  connection  with  the 
intent  set  forth,  we  must  look  into  the  rules  and  regulations  referred 
to,  a  copy  of  which  is  annexed  to  the  declaration.  They  arc  entitled 
"Constitution  and  By-laws  of  the  Seamen's  Mutual  Benefit  Asso- 
ciation of  the  city  of  Boston."  No  person  can  be  a  member  who 
does  not  keep  a  regular  seaman's  boarding-house.     Members  are 


SECT.  IV]  STRIKES    TO    UNIONIZE    SHOPS  299 

forbidden  to  ship  soainoii  for  less  than  certain  s[)ccified  rates  of 
wages.  They  are  to  use  their  best  endeavc^-s  to  prevent  tlieir  boarders 
from  shipping;  in  any  vessel  when  any  of  tlie  crew  are  shipix*d  fnjin 
boarding-houses  that  are  not  in  good  standing  with  the  aissociation. 
Other  articles  relate  to  the  duties  of  the  nicnilx-rs  t(jwardseach  other, 
in  endeavoring  U)  secure  payment  oi  board-bills,  and  not  taking  ad- 
vantage of  each  other.  We  can  see  ncjthing  criminal  in  any  of  the.se 
stipulations;  see  Commonwealth  v.  Hunt,  4  Met.  Ill;  and  nothing 
illegal.  If  their  effect  is  to  destroy  the  business  of  shipping-ma-sters 
who  are  not  members  of  the  as.sociation,  it  is  such  a  result  ius  in  the 
conijX'tition  of  bu.siness  often  follows  from  a  course  of  i)roceeding 
that  the  law  permits.  New  inventions  and  new  methotls  oi  transact- 
ing business  often  destroy  the  business  of  those  who  adhere  to  old 
methods.  Sometimes  associations  break  down  the  business  of  in- 
dividuals, and  sometimes  an  individual  is  able  to  destroy  the  busi- 
ness of  associated  men.  It  would  be  nothing  novel  if  the  plaintiff  in 
the  exercise  of  his  ingenuity  should  in  his  turn  adopt  some  improve- 
ment that  shall  compel  the  defendants  to  dissolve  their  connection. 
As  the  declaration  sets  forth  no  illegal  acts  on  the  part  of  the  defend- 
ants, the  demurrer  must  be  sustained.^ 


STATE  V.  DONALDSON 

Supreme  Court  of  New  Jersey.     1867 

32  A^.  J.  L.  151 

This  was  a  motion  to  quash  an  indictment  charging  a  conspiracy, 
which  had  been  brought  into  this  court  by  certiorari. 

The  substantial  facts  constituting  the  alleged  crime  were  these, 
viz.,  that  the  defendants,  and  divers  other  evil  disposed  jx^rsons, 
etc.,  being  journeymen  workmen  employed  by  Richmond  Ward, 
John  C.  Little,  and  others,  who  then  and  there  were  engaged  together 
in  the  manufacture  of  patent  leather,  and  as  curriers,  maliciously, 
to  control,  injure,  terrify,  and  impoverish  their  said  employers,  and 
f;)rce  and  comix'l  them  to  dismiss  from  their  said  employment  cer- 
tain persons,  to  wit,  Charles  Beggan  and  \\illiam  Pentlergrast,  then 
and  there  retained  by  their  said  employers  as  journejnien  and  work- 
men for  them,  and  to  injure  said  Charles  and  William,  and  without 
having  any  lawful  cause  of  objection  to  said  Charles  and  William, 
unlawfully  did  conspire,  combin(\  confederate,  and  agree  together 
to  quit,  leave,  and  turn  out  from  their  said  employment,  until  and 
unless  the  said  last  mentioned  journe>Tnen  and  workmen  should  he 
dismissed  by  their  said  emplovcMs.  The  indictment  then  further 
charged,  that  in  pursuance  of  such  conspiracy,  they  gave  notice  of 
their  agreement  to  their  said  employers,  and  required  them  to  dis- 
charge the  said  Charles  and  \\'illiam,  which,  l)eing  refused,  they 

>  Ck)mpare  Brewster  v.  Miller's  Sons  Co.,  101  Ky.  368. 


300  LEGALITY   OF   ENDS   PURSUED  [CHAP.  V 

quitted  their  said  employment,  and  remained  away  until  their 
demand  was  complied  with. 

The  motion  was  argued  before  the  Chief  Justice,  and  Justices 
Bedle  and  Dalrimple. 

The  opinion  of  the  court  was  delivered  by 

Beasley,  C.  J.  There  is,  perhaps,  no  crime,  an  exact  definition 
of  which  it  is  more  difficult  to  give  than  the  offence  of  conspiracy. 
That  a  combination  of  persons  to  effect  an  end,  itself  of  an  indict- 
able nature,  will  constitute  this  crime,  is  clear;  nor  is  there  any 
more  doubt  that,  though  the  purpose  the  confederacj'  is  designed  to 
accomplish  be  not  criminal,  yet  if  the  means  adopted  be  of  an  in- 
dictable character,  this  offence  is  likewise  committed.  Thus  far 
the  limits  are  clearl}^  defined,  and  embrace,  without  exception,  all 
cases  which  fall  within  them.  But  when  we  proceed  one  step  be- 
yond the  lines  thus  marked  out,  the  cases  which  have  been  adjudged 
to  be  conspiracies  appear  to  stand  apart  b}^  themselves,  and  are 
devoid  of  that  analogy  to  each  other  which  would  render  them  suscep- 
tible of  classification.  It  is  certain,  however,  that  there  are  a  num- 
ber of  cases,  in  which  neither  the  purpose  intended  to  be  accomplished 
nor  the  means  designed  to  be  used  were  criminal,  which  have  been 
regarded  to  be  indictable  conspiracies.  And  yet  it  is  obvious  that, 
in  the  nature  of  things,  it  cannot  be  every  collusion  between  two  or 
more  persons  to  do  an  unlawful  act,  or  an  indifferent  act  bj-  unlaw- 
ful means,  which  will  constitute  an  offence  of  a  public  nature;  for 
if  this  were  so,  a  large  portion  of  the  transactions  which,  in  the  or- 
dinary course  of  litigation  between  party  and  party,  comes  before 
the  courts,  would  assume  a  criminal  aspect,  in  which  the  state  would 
have  an  interest.  Indeed,  I  think  it  may  be  said  that  there  are, 
comparatively,  but  few  cases  of  combinations  in  which  indictability 
does  not  attach,  either  to  the  end  in  view,  or  to  the  instrumentalities 
devised,  which  are  punishable  by  a  public  prosecution.  ...  In  the 
case  of  The  State  v.  Norton,  3  Zab.  44,  .  .  .  Chief  Justice  Green, 
in  stating  his  conclusion,  after  an  examination  of  the  subject,  re- 
marks, "the  great  weight  of  authority,  the  adjudged  cases,  no  less 
than  the  most  approved  elementary  writers,  sustain  the  position, 
that  a  conspiracy  to  defraud  individuals  or  a  corporation  of  their 
property,  may,  in  itself,  constitute  an  indictable  offence,  though  the 
act  done,  or  proposed  to  be  done  in  pursuance  of  the  conspiracy, 
be  not,  in  itself,  indictable." 

The  rule  of  law  thus  enunciated  appears  to  me  to  be  the  correct 
one.  There  are  a  number  of  cases  which  cannot  be  sustaincnl  upon 
any  other  doctrine.  To  this  class  belongs  the  decision  that  it  was  a 
conspiracy  to  induce  a  young  female,  by  false  representations,  to 
leave  the  protection  of  the  house  of  her  parent,  in  order  to  facilitate 
h(!r  prostitution.  Rex  v.  Lord  Orey,  8  IIargrav(^'s  State  Trials,  519; 
Rex  V.  Sir  Francis  Deleval  and  others,  3  Burr.  1434.  So  a  conspiracy 
to  impoverish  a  tailor,  and  prevent  him,  by  indirect  means,  from 


SECT.  IV]  STRIKES   TO    UNIONIZE    SHOPS  301 

carrying  on  his  trade,  The  King  v.  Eccles,  3  Dougl.  337.  So  a  con- 
spiracy to  marry  paujM'rs,  witli  a  view  to  charge  one  parish  and 
exonerate  another,  Ke.x  v.  Tarrent,  4  Burr.  2100;  or  to  charge  a 
man  with  being  the  father  of  a  bastard,  ilex  v.  Armstrong,  1  Vent. 
304;  Ilex  r.  Kiinbcrty,  1  Ij<'V.  02;  Ilex  v.  Timbcriy,  Sid.  OH;  or  a 
combination  to  impoverish  a  class  of  persons,  Ilex  /-.  Sterling,  1  Iav. 
125;  s.  c,  Sid.  174.  These  are  all  cases,  it  will  Ix;  noticed,  in  which 
the  act  which  formed  th(;  foundation  of  the  indictment  would  not, 
in  law,  have  constituted  a  crime,  if  such  act  had  been  done  by  an 
individual,  the  combination  being  alone  the  cjuality  of  the  trans- 
actions which  made  them  resix'ctivel}'  indictable. 

I  conclude,  then,  that  there  is  no  uncertainty  in  this  legal  topic 
to  this  extent,  in  addition  to  the  principles  before  adverted  to,  that 
cases  may  occur  in  which  the  p\irpose  designed  to  Ix*  accomplished 
becomes  punitive,  as  a  public  olTence,  solely  from  the  fact  of  the  ex- 
istence of  a  confederacy  to  eflfcct  such  purjjose.  It  is  certainly  not 
to  be  denied,  however,  that  great  practical  difficulty  is  experienced 
whenever  any  attempt  is  made  to  lay  down  any  general  rules  by 
which  to  discriminate  that  class  of  combinations  which  becomes 
thus  punishable,  from  those  which  an?  to  l)e  regarded  in  their  results 
as  mere  civil  injuries,  remedial)le  by  private  suit.  It  may  be  .safely 
said,  nevertheless,  that  a  combination  will  be  an  indictable  con- 
spiracy, wh(>never  the  end  prof)Osed,  or  the  means  to  be  employed 
are  of  an  highly  criminal  character;  or  where  they  are  such  as  in- 
dicate great  malice  in  the  confederates;  or  where  deceit  is  to  l)e 
used,  the  oliject  in  view  being  unlawful;  or  where  the  confederacy, 
having  no  lawful  aim,  tends  simply  to  the  oppression  of  indivitluals. 
A  careful  analj^sis  of  the  cases  which  have  been  heretofore  adjudge<l 
will  reveid  the  presence  of  one  or  more  of  the  qualities  here  enumer- 
ated; to  this  extent,  therefore,  they  may  be  relied  on  as  safe  criteria 
whereby  to  test  new  emergencies  as  they  may  be  presented  for  ad- 
judication. 

In  view,  then,  of  these  general  deductions,  and  guided  l)y  the  de- 
cisions above  cited,  let  us  turn  our  attention  to  the  particular  in- 
dictment now  before  us. 

The  substantial  offence  charged  is,  that  the  defendants  combined 
to  compel  their  employer  to  discharge  certam  of  their  fellow  work- 
men, the  means  adopted  to  enforce  this  concession  bi'ing  an  an- 
nounced determination  to  quit  their  emplo>Tnent  in  a  liody  and  by 
a  simultaneous  act.  .  .  . 

It  appears  to  me  that  it  is  not  to  be  denied,  that  the  alleged  aim 
of  this  coml)ination  was  unlawful;  the  effoit  was  to  dictate  to  this 
employer  whom  he  should  discharge  from  his  employ.  This  was  an 
unwarrantable  interference  with  the  conduct  of  his  l)usiness,  and  it 
seems  impo.ssil)le  that  such  acts  should  not  be.  in  their  usual  effects, 
highly  injurious.  How  far  is  this  mode  of  dictation  to  be  held  law- 
ful?   If  the  manufacturer  can  be  compelled  in  this  way  to  discharge 


302  LEGALITY    OF   ENDS    PURSUED  [CHAP.  V 

two  or  more  hands,  he  can,  by  similar  means,  be  coerced  to  retain 
such  workmen  as  the  conspirators  may  choose  to  designate.  So  his 
customers  may  be  proscribed,  and  his  business  in  other  respects  con- 
trolled. I  cannot  regard  such  a  course  of  conduct  as  lawful.  It  is 
no  answer  to  the  above  considerations  to  say,  that  the  employer  is 
not  compelled  to  submit  to  the  demand  of  his  employees;  that  the 
penalty  of  refusal  is  simply  that  they  will  leave  his  service.  There 
is  this  coercion:  the  men  agree  to  leave  simultaneously,  in  large 
numbers  and  by  preconcerted  action.  We  cannot  close  our  eyes  to 
the  fact,  that  the  threat  of  workmen  to  quit  the  manufacturer,  un- 
der these  circumstances,  is  equivalent  to  a  threat,  that  unless  he 
yield  to  their  unjustifiable  demand,  they  will  derange  his  business, 
and  thus  cast  a  heavy  loss  upon  him.  The  workmen  who  make  this 
threat  understand  it  in  this  sense,  and  so  does  their  employer.  In 
such  a  condition  of  affairs,  it  is  idle  to  suggest  that  the  manufacturer 
is  free  to  reject  the  terms  which  the  confederates  offer.  In  the  natural 
position  of  things,  each  man  acting  as  an  individual,  there  would 
be  no  coercion;  if  a  single  employee  should  demand  the  discharge  of 
a  co-employee,  the  employer  would  retain  his  freedom,  for  he  could 
entertain  or  repel  the  requisition  without  embarrassment  to  his 
concerns;  but  in  the  presence  of  a  coalition  of  his  employees,  it 
would  be  but  a  waste  of  time  to  pause  to  prove  that,  in  most  cases, 
he  must  submit,  under  pain  of  often  the  most  ruinous  losses,  to  the 
conditions  imposed  on  his  necessities.  It  is  difficult  to  believe  that 
a  right  exists  in  law,  which  we  can  scarcely  conceive  can  produce, 
in  any  posture  of  affairs,  other  than  injurious  results.  It  is  simply 
the  right  of  workmen,  by  concert  of  action,  and  by  taking  advan- 
tage of  their  position,  to  control  the  business  of  another.  I  am  un- 
willing to  hold  that  a  right  which  cannot,  in  any  event,  be  advan- 
tageous to  the  employee,  and  which  must  be  always  hurtful  to  the 
employer,  exists  in  law.  In  my  opinion,  this  indictment  sufficiently 
shows  that  the  force  of  the  confederates  was  brought  to  bear  upon 
their  employer  for  the  purpose  of  oppression  and  mischief,  and  that 
this  amounts  to  a  conspiracy. 

I  also  think  this  result  is  sustained  by  all  the  judicial  opinion 
which  has  heretofore  been  expressed  on  this  point.  In  substance, 
the  indictment  in  this  case  is  similar  to  that  in  Rex  v.  Ferguson  and 
lOdge,  2  Stark.  R.  489.  ...  So  in  Rex  v.  Rickerdykc,  1  M.  &  Rob. 
179,  the  same  doctrine  was  maintained.  .  .  .  These  two  cases,  it 
will  be  observed,  sustain  witli  entire  aptness  the  opinion  above 
expressed,  and  I  have  not  found  any  of  an  opposite  tendency.  As 
to  the  case  of  The  Commonwealth  v.  Hunt,  4  Met.  Ill,  it  is  clearly 
distinguishable,  and  I  concur  entirely,  as  well  with  the  principles 
embodied  in  the  opinion  which  was  r(\ad  in  the  case,  as  in  the  re- 
sult which  was  attained.  The  foundation  of  the  indictment  in  that 
case,  was  the  formation  of  a  club  by  journeymen  boot-makers,  one 
of  the  regulations  of  which  was,  that  no  person  belonging  to  it  should 


SECT.  IV]  STRIKES    TO    UXION'IZE    SUOPS  '^')3 

work  for  any  inastL-r  workmen  who  sliould  employ  any  journeyman 
or  other  workman  who  shcjuld  not  be  a  member  of  sueh  club.  Such 
a  combination  dcx's  not  appear  io  possess  any  feature  of  illegality, 
for  the  law  will  not  intend,  without  proof,  that  it  wits  formed  for 
the  accomplishment  of  any  illegal  end.  "Such  an  a.ss(jciation," 
says  Chief  Justice  Shaw,  in  his  opinion,  "nuKht  be  used  U)  alTord 
each  other  assistance  in  times  of  poverty,  sicknes.s,  and  distress; 
or  to  raise  their  intellectual,  moral,  or  social  conditicjn;  or  to  make 
improvements  in  their  art;  or  for  other  purp<jses."  The  force  of 
this  association  wius  not  concentrated  with  a  view  to  Ix;  exerted  to 
oppress  any  indivitlual,  and  it  was  consctpiently  entirely  unlike  the 
case  of  men  who  take;  advantage  of  th:'ir  position,  to  use  the  power, 
by  a  concert  of  action,  which  such  position  gives  them,  to  compel 
their  employer  to  a  certain  line  of  conduct.  Tlie  object  of  the  club 
was  to  establish  a  general  rule  for  the  regulation  of  its  members; 
but  the  object  of  the  combination,  in  the  case  now  before  this  court, 
was  to  occa.sion  a  particular  result  wliieh  was  mischievous,  and  by 
means  which  were  oppressive.  The  two  cases  are  not  parallel,  and 
must  be  governed  by  entirely  different  considerations. 

The  motion  to  quash  shoubl  nut  prevail.^ 

NATIONAL  PROTECTIVE  ASSOCIATION  OF  STEAM      \     Y» 
FITTERS  AND  HELPERS  v.  CUMMING  K*  -V^ 


^ 


y^j" 


Court  of  Appeals  of  New  York.     1902     ^-  ^ 

170  xV.  Y.  315  %S^  " 

Parker,  Ch.  J.  The  order  of  the  Appellate  Division  should  be 
affirmed,  on  the  ground  that  the  facts  found  do  not  support  the  judg- 
ment of  the  Special  Term.  In  the  discussion  of  that  proposition  I 
shall  assume  that  certain  principles  of  law  laid  tlown  in  the  opinion 
of  Judge  Vann  are  correct,  namely: 

"It  is  not  th(^  tluty  of  one  man  to  work  for  another  unless  he  has 
agreed  to,  and  if  he  has  so  agreed  but  for  no  fixed  period,  either  may 
end  the  contract  whenever  he  chooses.  The  one  may  work,  or  re- 
fuse to  work,  at  will,  and  the  other  may  hire  or  discharge  at  will. 
The  t^rms  of  employment  are  subject  to  mutual  agreement,  without 
let  or  hindrance  from  any  one.  If  the  terms  do  not  suit,  or  the  em- 
ployer does  not  please,  the  right  to  quit  is  absolute,  and  no  one  may 
demand  a  reason  therefor.  Whatever  one  man  may  do  alone,  he 
may  do  in  coml)ination  with  others,  provided  they  have  no  unlaw- 

'  '-Tlio  (lontriiio  of  tii(>  ol.l  riisos,  of  which  we  Ikivo  in  New  Jersey  an  interest- 
itiK  exainplo  in  Stati-  r.  Doiialdson  .  .  .  which  placcil  the  oinployec  when  acting 
in  combination  with  liis  follow-workinen  at   a  troinondous  disjulvantuRp  !is  com- 
pared  with  his  emplovor,  I  think  mav  he  roRardcd  as  entirely  explo.led."    Jersey  » 
City  Printing  Co.  r.  C:ussidv,  »«  X.  J.  Eq.  ToO  at  p.  7tV2  (1902). 

Compare  People  i'.  Smith,  5  X.  V.  (Vim.  Kei).  500  (1SS7)  (criminal  conspiracy). 


304  LEGALITY   OF   ENDS   PURSUED  [CHAP.  V 

ful  object  in  view.  Mere  numbers  do  not  ordinarily  affect  the  quality 
of  the  act.  Workingmen  have  the  right  to  organize  for  the  purpose 
of  securing  higher  wages,  shorter  hours  of  labor  or  improving  their 
relations  with  their  employers.  The}'  have  the  right  to  strike;  that 
is,  to  cease  working  in  a  body  by  pre-arrangement  until  a  grievance 
is  redressed,  provided  the  object  is  not  to  gratify  malice  or  inflict 
injury  upon  others,  but  to  secure  better  terms  of  employment  for 
themselves.  A  peaceable  and  orderly  strike,  not  to  harm  others, 
but  to  improve  their  own  concUtion,  is  not  in  violation  of  law." 

Stated  in  other  words,  the  propositions  quoted  recognize  the  right 
of  one  man  to  refuse  to  work  for  another  on  any  ground  that  he 
may  regard  as  sufficient,  and  the  employer  has  no  right  to  demand 
a  reason  for  it.  But  there  is,  I  take  it,  no  legal  objection  to  the  em- 
ployee's giving  a  reason,  if  he  has  one,  and  the  fact  that  the  reason 
given  is,  that  he  refuses  to  work  with  another  who  is  not  a  member 
of  his  organization,  whether  stated  to  his  employer  or  not,  does  not 
affect  his  right  to  stop  work  nor  does  it  give  a  cause  of  action  to  the 
workman  to  whom  he  objects  because  the  emploj-er  sees  fit  to  dis- 
charge the  man  objected  to  rather  than  lose  the  services  of  the  ob- 
jector. 

The  same  rule  applies  to  a  body  of  men  who,  having  organized 
for  purposes  deemed  beneficial  to  themselves,  refuse  to  work.  Their 
reasons  may  seem  inadequate  to  others,  but  if  it  seems  to  be  in  their 
interest  as  members  of  an  organization  to  refuse  longer  to  work, 
it  is  their  legal  right  to  stop.  The  reason  may  no  more  be  demanded, 
as  a  right,  of  the  organization  than  of  an  individual,  but  if  they  elect 
to  state  the  reason  their  right  to  stop  work  is  not  cut  off  because  the 
reason  seems  inadequate  or  selfish  to  the  employer  or  to  organized 
society.  And  if  the  conduct  of  the  members  of  an  organization  is 
legal  in  itself,  it  does  not  become  illegal  because  the  organization 
directs  one  of  its  members  to  state  the  reason  for  its  conduct. 

The  principles  quoted  above  recognize  the  legal  right  of  members 
of  an  organization  to  strike,  that  is,  to  cease  working  in  a  bod}^  by 
pre-arrangoment  until  a  grievance  is  redressed,  and  they  enumerate 
some  things  that  may  be  treated  as  the  sul)ject  of  a  grievance,  namely, 
the  desire  to  o])tain  higher  wages,  shorter  hours  of  labor  or  im- 
proved relations  with  their  employers,  but  this  enumeration  does 
not,  I  take  it,  purport  to  cover  all  the  grounds  which  will  lawfully 
justify  members  of  an  organization  n^fusing,  in  a  l)ody  and  by  pre- 
arrungement,  to  work.  The  enumeration  is  illustrative  rather  than 
comprehensive,  for  the  object  of  such  an  organization  is  to  benefit 
all  its  members  and  it  is  their  right  to  strike,  if  need  be,  in  order  to 
secure  any  lawful  benefit  to  the  several  members  of  the  organiza- 
tion as,  for  instance,  to  secure  the  r(>-(>mplovment  of  a  member  th'^y 
regard  as  having  been  improperly  (hschargcMl,  and  to  secure  from 
an  employer  of  a  number  of  them  employment  for  other  members 
of  their  organization  who  may  be  out  of  emplo  ment,  although  the 


SECT.  IV]  STUIKES    TO    LMUNIZE    SHOPS  305 

effect  will  bo  to  cause  the  discharge  of  (jther  <'iuplov<'eK  who  are  iKjt 
members. 

And  whenever  the  courts  can  see  that  a  refusal  of  memlM-rs  i){  an 
organization  to  work  witli  non-membejs  may  be  in  the  int<'reHt  of 
th(!  several  membei-s,  it  will  not  lussume,  in  the  al^sence  of  a  finding 
to  the  contrary,  tfiat  the  oI>ject  of  such  refusal  was  solely  to  gratify 
malice  and  to  inflict  injury  upon  such  n(jn-membcrs. 

A  number  of  reasons  for  the  acti(jn  of  the  organization  will  ut 
once  suggest  themselves  in  a  cai»e  lik(;  this.  One  reason  apparent 
from  the  findings  in  this  case,  as  I  shall  show  later,  is  the  desire  of 
the  orgam'zation  that  its  own  memln-rs  may  do  the  work  the  non- 
members  are  ix'rforming.  And  anotlier  most  important  rejison  is 
suggested  by  the  fact  that  these  particular  organizations,  ;us.so(ia- 
tions  of  steam  fitters,  required  every  applicant  for  memlxjrship  to 
pass  an  examination  testing  his  competency.  Now,  one  of  the  ob- 
jections sometimes  urged  against  lalxjr  organizations  is  that  un- 
skillful workmen  receive  as  large  compensation  as  those  thoroughly 
comix'tent.  The  examination  rcKpiired  by  the  defendant  a,s.Kocia- 
tions  tends  to  do  away  with  the  force  of  that  objection  as  to  them. 
And  again,  their  restriction  of  membership  to  those  who  have  stood 
a  pn>scribed  test  must  have  the  effect  of  securing  careful  as  well  lus 
skillful  ius.sociates  in  their  work,  and  that  is  a  matter  of  no  small 
im{)ortance  in  view  of  the  state  of  the  law,  which  al).solves  the  mas- 
ter from  liability  for  injuries  sustained  by  a  workman  through  the 
carelessness  of  a  co-employee.  So  long  as  the  law  compels  the  em- 
ployee to  bear  the  l)urden  of  the  injury  in  such  cases  it  cannot  l)e 
o{X'n  to  (}uestion  but  that  a  legitimate  and  necessary  object  of  socie- 
ties like  the  defendant  associations  would  be  to  assure  the  lives  and 
limbs  of  their  members  against  the  negligent  acts  of  a  reckless  co- 
employee,  and,  hence,  it  is  clearly  within  tiie  right  of  an  organization 
to  provide  such  a  method  of  examination  and  such  tests  as  will  secure 
a  careful  and  competent  membership,  and  to  insist  that  protection 
of  life  and  limb  requires  that  they  shall  not  be  compelled  to  work 
with  men  whom  they  have  not  seen  fit  to  admit  into  their  organiza- 
tion, as  happened  in  the  case  of  the  plaintiff  McC^ueed. 

While  I  purpose  to  take  the  broader  ground,  which  I  deem  fully 
justified  by  the  principles  quoted,  as  well  iis  the  authorities,  that 
the  defendants  had  the  right  to  strike  for  any  reason  they  deemed 
a  just  one,  and  further,  had  the  right  to  notify  their  employer  of 
their  purpose  to  strike,  I  am  unable  to  see  how  it  is  possible  to  deny 
the  right  of  these  defendant  organizations  and  their  members  to 
refuse  to  work  with  non-members,  when,  in  the  event  of  injury  V)y 
the  carelessness  of  such  co-employees,  the  burden  would  have  to 
he  borne  by  the  injured,  without  compensation  from  the  employer 
and  with  no  financial  responsibility',  as  a  gen(M-al  rule,  on  the  part 
of  those  causing  the  injury;  for  it  is  well  known  that  some  men, 
even  in  the  pres(Mi('(^  of  danger,  are  p(M-fectly  reckless  of  themselves 


306  LEGALITY   OF   ENDS   PUKSUED  [CHAP.  V 

and  careless  of  the  rights  of  others,  with  the  result  that  accidents 
are  occurring  almost  constantly  which  snuff  out  the  lives  of  work- 
men as  if  they  were  candles,  or  leave  them  to  struggle  through  life 
mained  and  helpless.  These  careless,  reckless  men  are  known  to 
their  associates,  who  not  only  have  the  right  to  protect  themselves 
from  such  men,  but,  in  the  present  state  of  the  law,  it  is  their  duty, 
thi-ough  their  organizations,  to  attempt  to  do  it,  as  to  the  trades 
affording  special  opportunities  for  mischief  arising  from  recklessness. 

I  know  it  is  said  in  another  opinion  in  this  case  that  "workmen 
cannot  dictate  to  employers  how  thej^  shall  carry  on  their  business, 
nor  whom  they  shall  or  shall  not  employ";  but  I  dissent  absolute^ 
from  that  proposition,  and  assert  that,  so  long  as  workmen  must 
assume  all  the  risk  of  injury  that  may  come  to  them  through  the 
carelessness  of  co-employees,  they  have  the  moral  and  legal  right  to 
say  that  they  will  not  work  with  certain  men,  and  the  employer 
must  accept  their  dictation  or  go  without  their  services.  .  .  . 

Now,  before  taking  up  the  findings  of  fact  for  analysis  in  the 
light  of  the  principles  quoted  above,  and  with  the  view  of  show- 
ing that  they  do  not  sustain  the  judgment  of  the  Special  Term,  I 
wish  to  again  call  attention  to  the  rules  quoted,  and  particularly 
to  so  much  of  them  as  intimates  that  if  the  motive  be  unlawful  or 
be  not  for  the  good  of  the  organization  or  some  of  its  members,  but 
prompted  wholly  by  malice  and  a  desire  to  injure  others,  then  an 
act,  which  would  be  otherwise  legal,  becomes  unlawful.  To  state 
it  concretely,  if  an  organization  strikes  to  help  its  members,  the 
strike  is  lawful.  If  its  purpose  be  merely  to  injure  non-members,  it 
is  unlawful.  If  the  organization  notifies  the  employer  that  its  mem- 
bers will  not  work  with  non-members,  and  its  real  object  is  to  benefit 
the  organization  and  secure  employment  for  its  members,  it  is  law- 
ful. If  its  sole  purpose  be  to  prevent  non-members  working,  then  it 
is  unlawful.  I  do  not  assent  to  this  proposition,  although  there  is 
authority  for  it.  It  seems  to  me  illogical  and  little  short  of  absurd 
to  say  that  the  every-day.  acts  of  the  business  world,  apparently 
within  the  domain  of  competition,  may  be  either  lawful  or  unlawful 
according  to  the  motive  of  the  actor.  If  the  motive  be  good,  the  act 
is  lawful;  if  it  be  bad,  the  act  is  unlawful.  Within  all  the  authorities 
upholding  the  principle  of  competition,  if  the  motive  be  to  destroy 
another's  business  in  order  to  secure  business  for  yourself,  the  mo- 
tive is  good;  but,  according  to  a  few  recent  authorities,  if  you  do  not 
need  the  business,  or  do  not  wish  it,  then  the  motive  is  bad;  and 
some  court  may  say  to  a  jury,  who  are  generally  the  triers  of  fact, 
that  a  given  act  of  coinpetition  which  destroyed  A's  business  was 
legal  if  the  act  was  prompted  by  a  desire  on  the  part  of  the  defend- 
ant to  secure  to  himself  the  benefit  of  it,  but  illegal  if  its  purpose 
was  to  destroy  A's  business  in  revenge  for  an  insult  given. 

But  for  the  purpose  of  this  discussion  I  shall  assume  this  prop- 
osition to  be  sound,  for  it   is  dear  to  me  tliat,  applying  that  rule 


SECT.  IV]  STRIKES   TO   UNTION'IZE    SHOPS  307 

to  the  facts  found,  it  will  a[){)<':ii-  tiiat  the  ApfX'llate  Division  order 
sliould  l)(!  .sustained. 

While  I  shall  consider  every  fact  found  by  the  learned  trial  judge 
I  shall  consider  the  findin^;s  in  a  difTercnt  order,  hecause  it  sr-eins  to 
me  th<*  more  logical  order,  lie  finds  "that  the  defendant.s  Ciuii- 
miiif^  and  Nugent,  while  acting  in  their  capaeity  of  walking  dele- 
gates for  their  respective  a.s.s(jciations  and  memlx-rs  of  the  Board 
of  Delegates,  eau-sed  the  plaintiff  Mc(^ueed  and  other  memlx^rs  of 
the  plaint ifT  ii.s.sociation  to  be  discharged  by  their  <'mi)loyers  from 
various  pieces  of  work  ufjori  buildings  in  the  course  of  erection,  .  .  . 
by  threatening  the  .  .  .  i  iiiployers  that  if  they  did  not  discharge 
the  members  of  the  plaintiff  association  and  employ  the  memlx'rs 
of  the  Enterprise  and  Progress  as.sociations  in  their  stead,  the  said 
walking  d(>legates  would  cause  a  general  strike  (A  all  men  of  other 
trades  employed  on  said  buildings,  and  tiiat  the  defendant  Cum- 
ming,  as  such  walking  delegate,  did  cause  strikes,  ...  in  order  to 
prevent  the  members  of  the  plaintiff  association  from  continuing 
with  the  work  they  were  doing  at  the  time  the  strike  was  ordered, 
and  that  said  employers  by  reason  of  said  threats  antl  the  acts  of 
the  defendants  Cunuuing  and  Nugent,  discharged  the  members 
of  the  plaintiff  association  and  employed  the  members  of  the  Enter- 
prise antl  Progress  associations  in  their  stead." 

Now  there  is  not  a  fact  stated  in  that  finding  which  is  not  lawful 
within  th(>  rules  which  I  have  (juoted  supra.  Those  principles  con- 
cede tlie  right  of  an  as.sociation  to  strike  in  order  to  benefit  its  mem- 
bers; and  one  method  of  benefiting  them  is  to  secure  them  employ- 
ment, a  method  conceded  to  be  within  the  right  of  an  organization 
to  employ.  There  is  no  pretense  that  the  defendant  as.sociations  or 
their  walking  delegates  had  any  other  motive  than  one  which  the 
law  justifies  of  attempting  to  benefit  their  members  by  securing 
their  employment.  Nowhere  throughout  that  finding  will  Ixi  found 
even  a  hint  that  a  strike  was  ordered  or  a  notification  given  of  the 
intention  to  order  a  strike  for  the  purpo.se  of  accomplisiiing  any 
other  result  than  that  of  securing  the  discharge  of  the  members  of 
the  plaintiff  a.s.sociation  and  the  substitution  of  members  of  the 
defendant  associations  in  their  place.  Such  a  purpo.se  is  not  illegal 
within  the  rules  laid  down  in  the  opinion  of  Judge  Vann,  nor  within 
the  authorities  citetl  therein;  on  the  contrarj^  such  a  motive  is  con- 
ceded to  be  a  legal  one.  It  is  only  where  the  sole  purpose  is  to  do 
injury  to  another,  or  the  act  is  prompt^^d  by  malice,  that  it  is  in- 
sisted that  the  act  becomes  illegal.  No  such  motive  is  alleged  in 
that  finding.  It  is  not  hinU'd  at.  On  the  contrary,  the  motive 
which  always  underlies  competition  is  asserted  to  have  Ix'cn  the 
animating  one.  It  is  beyond  the  right  and  the  power  of  this  court 
to  import  into  that  finding,  in  contradiction  of  another  finding  or 
otherwise,  the  furtluM-  finding  that  the  motive  which  prompted  the 
conduct   of  (lefeiidants  was  an   unlawful   one.   prompted   by   malice 


308  LEGALIIT    OF    ENDS    PURSUED  [CHAP.  V 

and  a  desire  to  do  injury  to  plaintiffs  without  benefiting  the  mem- 
bers of  the  defendant  associations. 

I  doubt  if  it  would  ever  have  occurred  to  any  one  to  claim  that 
there  was  anj-thing  in  that  finding  importing  a  different  motive 
from  that  specially  alleged  in  the  finding,  had  not  the  draftsman 
characterized  the  notice  given  to  the  employers  by  the  associations 
of  their  intention  to  strike  as  "threats." 

The  defendant  associations,  as  appears  from  the  finding  quoted, 
wanted  to  put  their  men  in  the  place  of  certain  men  at  work  who 
were  non-members  working  for  smaller  pay,  and  they  set  about  doing 
it  in  a  perfectly  lawful  way.  They  determined  that  if  it  were  neces- 
sary they  would  bear  the  burden  and  expense  of  a  strike  to  accom- 
plish that  result,  and  in  so  determining  they  were  clearly  within  their 
rights,  as  all  agree.  They  could  have  gone  upon  a  strike  without 
offering  any  explanation  until  the  contractors  should  have  come  in 
distress  to  the  officers  of  the  associations  asking  the  reason  for  the 
strike.  Then,  after  explanations,  the  non-members  would  have  been 
discharged  and  the  men  of  defendant  associations  sent  back  to  work. 
Instead  of  taking  that  course,  they  chose  to  inform  the  contractors 
of  their  determination  and  the  reason  for  it. 

It  is  the  giving  of  this  information,  a  simple  notification  of  their 
determination,  which  it  was  right  and  proper  and  reasonable  to 
give,  that  has  been  characterized  as  "threats"  by  the  Special  Term, 
and  which  has  led  to  no  inconsiderable  amount  of  misunderstanding 
since.  But  the  sense  in  which  the  word  was  employed  by  the  court 
is  of  no  consequence,  for  the  defendant  associations  had  the  abso- 
lute right  to  threaten  to  do  that  which  they  had  the  right  to  do. 
Having  the  right  to  insist  that  plaintiff's  men  be  discharged  and 
defendants'  men  put  in  their  place  if  the  services  of  the  other  mem- 
bers of  the  organization  were  to  be  retained,  they  also  had  the  right 
to  threaten  that  none  of  their  men  would  stay  unless  their  members 
could  have  all  the  work  there  was  to  do. 

The  findings  further  stated  that  the  defendants  Gumming  and 
Nugent  were  the  walking  delegates  of  the  defendant  associations 
and  as  such  were  members  of  the  board  of  delegates  of  the  building 
trades  in  New  York  and  were,  therefore,  in  control  of  the  matters 
in  their  respective  trades.  The  trial  court  also  found  "that  the  de- 
fendant Gumming  threatened  to  cause  a  general  strike  against  the 
plaintiff  association  and  against  the  plaintiff  McQueed  wherever 
he  found  them  at  work,  and  that  he  would  not  allow  them  to  work 
at  any  job  in  the  city  of  New  York,  except  some  small  jobs  where 
the  men  of  the  Enterprise  Association  were  not  employed,  and  that 
h(!  and  the  defendant  Nugent  threatened  to  drive  tiie  plaintiff  asso- 
ciation out  of  existence." 

Now  this  finding  should  be  read  in  connection  with,  and  in  the 
light  of,  the  other  findings  which  I  have  already  read  and  com- 
mented on  and  which  show  that  the  purpose  of  the  strike  was  to 


SECT.  IV]  STRIKES   TO   UNIONIZE    SHOPS  309 

spcure  tho  cmployincnt  of  inoinbcrs  of  the  dcfondant  associations 
in  the  places  lillc(l  by  the  nicnilx'is  (jf  plaintiff's  association,  who 
wore  willing  to  work  for  smaller  wages,  a  perfectly  proper  and  legit- 
imate motive,  as  we  have  seen.  But  if  the  other  findings  he  driven 
fiom  the  mind  while  considering  this  one,  which  the  opinirjns  of  the 
Ap[)<'llate  Division  indicate  was  not  justified  l»y  the  evidence,  it 
will  be  found  that  it  faiily  means  in)  more  than  that  the  defendant 
associations  did  not  purpose  to  allow  MeQueed  and  the  memlx»rs 
of  his  association  to  work  upon  any  jobs  where  members  of  defend- 
ant associations  wei-e  enii)loyed;  that  they  were  perfectly  willing 
to  allow  them  to  have  small  jobs,  fitted  perhaps  for  men  who  were 
willing  to  work  for  small  wages,  but  that  the  larger  jobs  where  they 
<'ould  afford  to  pay,  and  would  pay  the  rate  of  wages  demanded  by 
defendant  associations,  they  intende(l  to  secure  for  their  members 
alone  —  a  determination  to  whicli  they  had  a  perfect  rigiit  to  come, 
as  is  conceded  by  the  rules  which  1  have  cjuoted. 

Having  reached  that  conclusion,  defendants  notified  McC^ueed, 
who  had  organiz(Hl  an  as.sociation  wlun  he  failed  to  pass  the  de- 
fendants' examination,  tluit  they  would  prevent  him  and  the  men 
of  his  association  ivom  working  on  a  ciM'tain  class  of  jobs.  They  did 
not  threaten  to  employ  any  illegal  method  to  accomplish  that  re- 
sult; they  notified  thiMU  of  the  purpose  of  the  defendants  to  secure 
this  work  for  themselves  and  to  prevent  McC^ueed  and  his  as.sociates 
from  getting  it,  and  in  doing  that  they  but  informed  them  of  their 
intention  to  do  what  they  had  a  right  to  do,  and  when  a  man  pur- 
poses to  do  something  whicii  ho  has  the  legal  right  to  do,  there  is 
no  law  which  prevents  him  from  telling  another,  who  will  be  affected 
by  his  act,  of  his  intention. 

A  man  has  a  right  under  the  law  to  start  a  store  and  to  sell  at  such 
retluced  prices  that  ho  is  able  in  a  short  time  to  drive  the  other  store- 
keepers in  his  vicinity  out  of  business,  when,  having  possession  of 
the  trad(\  ho  finds  himself  soon  abl(>  to  recover  tho  loss  sustained 
while  ruining  the  others.  Such  has  been  tho  law  for  centuries.  The 
reason,  of  coui-se,  is  that  the  doctrine  has  generally  been  accepted 
that  free  competition  is  worth  more  to  society  than  it  costs,  and 
that,  on  this  ground,  tho  infiiction  of  damages  is  privileged.  ((\)m- 
monw(>altii  r.  Hunt,  4  Motcalf,  111,  134.) 

Nor  could  this  storokeo{X'r  bo  pnn-ontfHl  from  carrying  out  his 
scheme  because,  instead  of  hiding  his  purpose,  he  openly  declared 
to  those  ston^koopors  that  ho  intended  to  drive  them  out  of  Inisiness 
in  order  that  ho  might  later  profit  thereby.  Nor  would  it  avail 
such  storok(>opors,  in  the  event  of  their  bringing  an  action  to  restrain 
him  from  accomplishing  their  ruin  by  underselling  them,  to  jx^rsuaile 
the  trial  court  to  characterize  the  notification  as  a  "threat,"  for  on 
revi(Mv  the  answer  would  l)o:  A  man  may  threat(Mi  to  do  that  which 
th(>  law  says  ho  may  do,  provided  tiiat,  within  the  rules  laid  down 
in  those  cases,  his  motive  is  to  help  himst>lf. 


310  LEGALITY   OF   ENDS   PURSUED  [CHAP.  V 

A  labor  organization  is  endowed  with  precisely  the  same  legal 
right  as  is  an  individual  to  threaten  to  do  that  which  it  may  law- 
fully do. 

Having  finished  the  discussion  of  the  facts,  I  reiterate  that,  within 
the  rules  of  law  I  have  quoted,  it  must  appear,  in  order  to  make  out 
a  cause  of  action  against  these  defendants,  that  in  what  thej^  did 
they  were  actuated  by  improper  motives,  by  a  malicious  desire  to 
injure  the  plaintiffs.  There  is  no  such  finding  of  fact,  and  there  is 
no  right  in  this  court  to  infer  it,  if  it  would,  and  from  the  other  facts 
found,  it  is  plain  that  it  should  not,  if  it  could. 

The  findings  conclude  with  a  sentence  which  commences  as  fol- 
lows: "I  find  that  the  threats  made  by  the  defendants  and  the  acts 
of  the  said  walking  delegates  in  causing  the  discharge  of  the  mem- 
bers of  the  plaintiff  association  by  means  of  threats  of  a  general 
strike  of  other  workmen,  constituted  an  illegal  combination  and 
conspiracy."  —  That  is  not  a  finding  of  fact,  but  a  conclusion  of 
law  that  the  trial  court  erroneously,  as  I  think,  attempted  to  draw 
from  the  facts  found,  which  I  have  already  discussed,  and  which 
clearl}',  in  my  judgment,  require  tliis  court  to  hold  that  the  defend- 
ants acted  within  their  legal  rights. 

In  the  last  analysis  of  the  findings,  therefore,  it  appears  that  they 
declare  that  members  of  the  organizations  refused  to  work  any  longer 
(as  they  lawfully  might);  that  they  threatened  to  strike  (which  was 
also  within  their  lawful  right),  but  without  any  suggestion  what- 
ever in  the  findings  that  they  threatened  an  illegal  or  imlawful  act. 
And  such  findings  are  claimed  to  be  sufficient  to  uphold  a  judgment 
that  absolutely  enjoins  the  dcfc^ndant  associations  and  their  mem- 
bers from  striking.  This  is  certainl}'  a  long  step  in  advance  of  any 
decision  brought  to  my  attention. 

I  have  refrained  from  discussing  the  authorities  because  it  seemed 
unnecessary,  for  the  reason  already  stated  in  this  opinion.  But  it 
seems  not  out  of  place  to  suggest  that  the  decisions  of  the  English 
courts  upon  questions  affecting  the  rights  of  workmen  ought,  at 
least,  to  be  received  with  caution,  in  view  of  the  fact  that  the  later 
ones  are  largely  suppoi'ted  l)v  earh^  precedc^its  which  were  entirely 
consistent  with  the  pohcy  of  the  statute  law  of  England,  but  are 
hostile  not  only  to  the  statute  law  of  this  country,  but  to  the  spirit 
of  our  institutions.  .  .  . 

The  order  should  be  affirmed  and  judgment  absolute  ordered  for 
defendants  on  the  plaintiffs'  stipulation,  with  costs. 

(Ikay,  J.  I  express  my  concurrence  with  the  conclusion,  which 
has  been  reached  by  the  chi(>f  judge  in  his  opinion,  that  the  order 
of  the  Appellate  Division  should  be  affirmed.  ...  It  appears  that 
the  appellant,  McQueed,  having  failed  to  pass  the  required  examina- 
tion to  become  a  (|unhTied  member  of  the  respondents'  association, 
proceeded  to  organize  an  association  of  his  own.  Regarded  either 
as  an  effort  to  secure  only  the  employment  of  efficient  and  approved 


SECT.  IV]  STRIKES   TO    UNIONIZE    SHOPS  311 

workiueii,  or  as  u  more  strugp;le  for  exclusive  preference  of  employ- 
ment, on  their  own  terms  and  conditions,  from  either  standpoint 
how  can  it  be  said  to  be  within  the  condemnation  of  the  law,  or  of 
any  statute,  when  there  was  no  force  cmpioyrd,  nor  any  unlawful 
act  committed'  Our  laws  recoj^nizc  the  absolute  freedom  of  the 
individual  to  work  for  whom  he  chooses,  with  whom  he  ch(X}se.e 
and  to  make  any  contract  upon  the  subject  that  he  chooses.  There 
is  the  same  freedom  to  orf^aru'ze,  in  an  association  with  otliers  of  his 
craft,  to  further  their  common  interests  as  workin^men,  with  re- 
spect to  their  wa^es,  to  their  hours  of  labor,  or  to  mattei-s  affecting 
their  health  and  safety.  They  are  free;  to  .secure  the  furtherance  of 
their  common  interests  in  every  way,  which  is  not  within  the  pro- 
hibition of  some  statute,  or  wliich  does  not  invoke  the  commis- 
sion of  illef^al  acts.  The  strufijgle  on  the  part  of  individuals  to  jjrefer 
them.selves,  and  to  prevent  the  work  which  they  are  fitted  to  do 
from  being;  given  to  others,  may  l)e  keen  and  may  have  unhappy 
results  in  individual  c:i.ses;  but  the  law  is  not  concerned  with  such 
results,  when  not  caused  by  illegal  means  or  acts. 

I  concur  witii  the  chief  judge  in  his  analysis  of  the  decision  of 
the  trial  court  and  that  the  facts,  as  therein  stated,  do  not  compel 
the  legal  conclusion  which  the  learned  trial  judge  reached. 

I  vote  for  tlie  aflirmaiice  of  the  order  of  the  Appellate  Division.  .  .  . 

V.\Nr^,  J.,  dissenting.' 

O'Brie.v,  H.\ight,  JJ.,  (and  Giiay,  J.,  in  memorandum),  concur 
with  Parker,  Ch.  J.;  Bajrtlett  and  M.^JiTIN,  J.J.,  concur  with 
Vaxx,  J. 

Ordered  accordingly. 

'  The  dissenting  opinion  of  Vann,  J.,  is  omitted.  — Ed. 

Legality  of  Strikk  to  Cdmi'ki.  thk  DrscHAittJE  of  Non'-ITnio.v  Employees. 
The  doctrine  that  a  striko  to  conipel  the  discharge  of  non-union  employees  i.s  not 
per  se  illeKal  i.s  followed  in  the  majority  of  jurisdictions  in  which  the  question  hius 
come  Ix'fore  the  courts,  and  st;ems  to  be  the  view  Kcnerally  adopted  l)y  tho.se  juris- 
dictions where  the  question  is  still  a  new  one.  It  seems  to  l>c  law  in  California, 
Connecticut,  Illinois,  Indiana,  Minnesota,  New  York,  and  Oklahoma,  and  ap- 
parently also  in  Florida,  Ncl)raska,  North  Carolina,  and  Texas.  Some  of  tlie  lead- 
ing ca.se.s  in  accord  with  National  Protective  As.sn.  v.  Cunmiinn  are  Pierce  r. 
Stablemen's  I'nion,  1.5(5  Cal.  70;  Parkinson  v.  Building  Trades  Council,  l.')4  Cal. 
581;  Cohn  it  Roth  Electric  Co.  v.  Bricklayers'  I'nion,  92  Conn.  Kil  (in  practical 
effect  overruling  the  opposite  doctrine  annovmced  in  Wyeman  r.  Deady,  7'.>  C(»im. 
414,  and  followed  in  Connors  r.  Connolly,  SC)  Conn.  M\);  .Tetton-Dekle  Lumber 
Co.  V.  .Mather.  .53  Fla.  «)C)0;  Kemp  v.  Division  No.  241,  2.5.")  111.  213  fpra.-tically 
overruling  the  opposite  doctrine  announced  in  O'Brien  r.  Peojile,  21t'»  111.  3.541; 
Clemmitt  v.  Watson,  14  Ind.  .\pp.  3S;  Grant  Construction  Co.  r.  St.  Paul  Bldg. 
Trades  Council,  I.3t)  Minn.  ItlT;  dray  c.  Bldg.  Trades  Council,  91  Miim.  171, 
185;  State  /•.  Employers  of  I.^ibor,  102  Neb.  7t)S,  774;  Kis.s;un  r.  United  States 
Printing  Co.,  199  N.  Y.  7();  Bo.s.s(^rt  v.  Dhuv,  221  N.  Y.  .342;  Michaels  r.  Hillman. 
183  N.  Y.  Supp.  195.  202,  204;  State  r.  Van  Pelt,  130  N.  C.  (VW  (semblr);  K.Mldy 
V.  United  Mine  Workers,  41  Okla.  ()21;  Sheehan  v.  I^vy,  215  S.  W.  (Texas^  229 
(semble)  (compare  Cooks',  etc.,  Union  r.  Papageorge,  230  S.  W.  (Texas)  10.S«)). 
For  ca.ses  contra,  .s(v  note  1,  p.  318,  infra. 

A  similar  result,  in  accord  with  the  majority  of  American  jurisdictions,  has  l)een 


312  LEGALITY   OF   ENDS   PURSUED  [CHAP.  V 

PLANT  V.  WOODS 
Supreme  Judicial  Court  of  Massachusetts.     1900 

176  Mass.  492 

Bill  in  equity,  filed  in  the  Superior  Court,  by  the  officers  and 
members  "of  the  voluntary  association  known  as  Union  257,  Painters 
and  Decorators  of  America  of  Springfield,  Massachusetts,  which 
Union  is  affiliated  with  a  national  organization  of  the  same  name, 
with  headquarters  at  Lafayette  in  the  State  of  Indiana,"  against 
the  officers  and  members  "of  the  voluntary  association  known  as 
L^nion  257,  Painters  and  Decorators  of  America,  which  Union  is 
affiliated  with  a  national  organization  of  the  same  name,  with  head- 
quarters at  Baltimore  in  the  State  of  Maryland,"  to  restrain  the 
defendants  from  any  acts  or  the  use  of  any  methods  tending  to 
prevent  the  members  of  the  plaintiff  association  from  securing  em- 
ployment or  continuing  in  their  employment.  .  .  . 

Hammond,  J.  This  case  arises  out  of  a  contest  for  supremacy 
between  two  labor  unions  of  the  same  craft,  having  substantially 
the  same  constitution  and  bj'-laws.  The  chief  difference  between 
them  is  that  the  plaintiff  union  is  affiliated  with  a  national  organ- 
ization having  its  headquarters  in  Lafayette  in  the  State  of  Indiana, 
while  the  defendant  union  is  affiliated  with  a  similar  organization 
having  its  headquarters  in  Baltimore  in  the  State  of  Marjdand. 
The  plaintiff  union  was  composed  of  workmen  who  in  1897  with- 
drew from  the  defendant  union. 

There  does  not  appear  to  be  anj^thing  illegal  in  the  object  of  either 
union  as  expressed  in  its  constitution  and  by-laws.  The  defendant 
union  is  also  represented  bj^  delegates  in  the  Central  Labor  Union, 
which  is  an  organization  composed  of  five  delegates  from  each  trade 
union  in  the  city  of  Springfield,  and  had  in  its  constitution  a  provi- 
sion for  levying  a  boycott  upon  a  complaint  made  by  any  union. 

The  case  is  before  us  upon  a  report  after  a  final  decree  in  favor  of 
the  plaintiffs,  based  upon  the  findings  stated  in  the  report  of  the 
master. 

The  contest  became  active  early  in  the  fall  of  1898.  In  Septem- 
ber of  that  year,  the  members  of  the  defendant  union  declared  "all 
painters  not  affiliated  with  the  Baltimore  headquarters  to  be  non- 

reafhed  in  England.  White  v.  Riley,  [1921]  1  Ch.  1  (disapproving  the  apparently 
contrary  result  reached  in  the  earlier  case  of  Valentine  v.  Hyde,  11919]  2  Ch.  129). 
See  note  2,  p.  324,  infra. 

Compare  the  dictum  of  the  United  States  Supreme  Court  in  Coppage  v.  Kansas, 
2.36  II.  S.  1,  19.  "Can  it  be  doubted  that  a  labor  organization  .  .  .  has  the 
inherent  and  constitutional  right  to  deny  membership  to  any  man  who  will  not 
agree  that  during  such  membership  he  will  not  accept  or  retain  employment  in 
romi)any  with  non-union  men?  Or  that  a  union  man  has  the  constitutional  right 
to  decline  ()rofTered  employment  unless  the  employer  will  agree  not  to  employ 
any  non-union  men?" 


SECT.  IV]  STRIKES   TO    UNIONIZE   SHOPS  313 

union  men,"  and  voted  to  "notify-  the  bosses"  of  tluit  declaration. 
Tile  manifest  object  of  tlie  defendants  wjus  to  liave  all  the  memlHTS 
of  the  craft  subjected  to  the  rules  and  discipline  of  their  particular 
union,  in  order  that  they  might  have  Ix'tter  control  over  the  whole 
l)iisiness,  and  to  that  end  they  combined  and  conspirefj  to  get  the 
plaintiffs  and  each  of  them  to  join  the  defendant  association,  {x-ace- 
ably  if  possible,  but  by  threat  atul  intimidation  if  necessary.  Ac- 
cordiiiKly,  on  October  7,  they  voted  that  "if  our  demands  are  not 
complied  with,  all  men  working  in  shoi)s  where  Lafayette  i)eople 
are  employed  refuse;  to  go  to  work."  The  plaint iffs  resisting  what- 
ever {X'rsu:u5iv(>  meiusures,  if  any,  wei-e  used  b\-  the  defendants,  the 
latter  proceeded  to  carry  out  their  plan  in  the  manner  fully  set  forth 
in  the  nuLster's  report.  Without  rehearsing  the  circumstances  in 
detail  it  is  sudicient  to  say  here  that  the  general  method  of  fjjx'ra- 
tions  was  sul)stantially  as  follows. 

A  duly  authorizetl  agent  of  the  defentlants  would  visit  a  shop 
where  one  or  more  of  the  plaintiffs  were  at  work  and  inform  the 
employer  of  the  action  of  the  defendant  union  with  reference  to 
tile  plaintiffs,  and  ask  him  to  induce  such  of  tlie  plaintiffs  jis  were 
in  his  emi)lov  to  sign  applications  for  reinstatement  in  the  defend- 
ant union.  As  to  the  general  nature  of  these  interviews  the  nuister 
finds  that  tiie  defendants  have  been  courteous  in  manner,  have 
made  no  threats  of  personal  violence,  have  referred  to  tiie  plaintiffs 
as  non-union  men,  but  have  not  otherwise  represented  them  as  men 
lacking  good  standing  in  their  craft;  that  they  have  not  asked  that 
the  Lafayette  men  be  discharged,  and  in  some  cases  have  expres.sly 
stated  that  they  did  not  wish  to  have  them  dischargetl,  but  only 
tltit  they  sign  the  blanks  for  reinstatement  in  the  defendant  union. 
The  master,  however,  further  finds,  from  all  the  circumstances  under 
which  those  requests  were  made,  that  the  defendants  intended  that 
emi)loyers  of  Lafayette  men  siiould  fear  trouble  in  their  l)usiness  if 
they  continuetl  to  employ  such  men,  and  that  employers  to  whom 
these  recpiests  were  made  were  justified  in  l)elieving  that  a  failure 
on  the  part  of  their  employees  who  were  Lafayette  men  to  sign  such 
reiiLstatement  blanks,  and  a  failure  on  the  part  of  the  employers 
to  discharge  tiiem  for  not  doing  so,  would  lead  to  troul)le  in  the 
business  of  the  employers  in  the  natui-e  of  strikes  or  a  boyqott,  and 
the  employers  to  wiiom  these  recpiests  were  made  did  believe  that 
such  resultsS  would  follow,  and  did  suggest  their  belief  to  the  defend- 
ants, and  the  defendants  did  not  deny  that  such  results  might  occur; 
that  the  strikes  whicii  did  occur  ai)pear  to  have  becMi  steps  taken 
by  the  defendants  to  obtain  tiie  discharge  of  such  emjiloyees  as  were 
Lafayette  men  who  declined  to  sign  application  blanks  for  rein- 
statement; that  these  defendants  did  not  in  all  cases  threaten  a 
Ixiycott  of  the  employers'  business,  but  did  threaten  that  the  place 
of  l)usine.ss  of  at  least  one  such  (>mplo>'er  w<tuld  be  left  off  from  a 
so-called  ''fair  list"  to  Ix;  publishetl  by  the  Baltimore  Union.     Th(» 


314  LEGALITY   OF   ENDS   PURSUED  [CHAP.  V 

master  also  found  that,  from  all  the  evidence  presented,  the  object 
which  the  Baltimore  men  and  the  defendant  association  sought  to 
accomplish  in  all  the  acts  which  were  testified  to  was  to  compel  the 
members  of  the  Lafayette  Union  to  join  the  Baltimore  Union,  and 
as  a  means  to  this  end  they  caused  strikes  to  be  instituted  in  the 
shops  where  strikes  would  seriously  interfere  with  the  business  of 
the  shops,  and  in  all  other  shops  they  made  such  representations 
as  would  lead  the  proprietors  thereof  to  expect  trouble  in  their 
business.  .  .  . 

It  is  well  to  see  what  is  the  meaning  of  this  threat  to  strike,  when 
taken  in  connection  with  the  intunation  that  the  employer  may 
"expect  trouble  in  his  business."  It  means  more  than  that  the 
strikers  will  cease  to  work.  That  is  only  the  preliminary  skirmish. 
It  means  that  those  who  have  ceased  to  work  will,  by  strong,  persist- 
ent, and  organized  persuasion  and  social  pressure  of  every  descrip- 
tion, do  all  they  can  to  prevent  the  emploj^er  from  procuring  work- 
men to  take  their  places.  It  means  much  more.  It  means  that, 
if  these  peaceful  measures  fail,  the  employer  may  reasonably  expect 
that  unlawful  physical  injury  may  be  done  to  his  property;  that 
attempts  in  all  the  ways  practised  by  organized  labor  will  be  made 
to  injure  him  in  his  business,  even  to  his  ruin,  if  possible;  and  that, 
by  the  use  of  vile  and  opprobrious  epithets  and  other  annoying  con- 
duct, and  actual  and  threatened  personal  violence,  attempts  will 
be  made  to  intimidate  those  who  enter  or  desire  to  enter  his  employ; 
and  that  whether  or  not  all  this  be  done  by  the  strikers  or  only  by 
their  sympathizers,  or  with  the  open  sanction  and  approval  of  the 
former,  he  will  have  no  help  from  them  in  his  efforts  to  protect  him- 
self. ... 

Such  is  the  nature  of  the  threat,  and  such  the  degree  of  coercion 
and  intimidation  involved  in  it. 

If  the  defendants  can  lawfully  perform  the  acts  complained  of 
in  the  city  of  Springfield,  the}'  can  pursue  the  plaintiffs  all  over 
the  state  in  the  same  manner,  and  compel  them  to  abandon  their 
trade  or  bow  to  the  behests  of  their  pursuers.  .  .  . 
■  [As  stated]  by  Wells,  J.,  in  Walker  v.  Cronin,  107  Mass.  555,  564: 
^' Every  one  has  a  right  to  enjoy  the  fruits  and  advantages  of  his 
own  enterprise,  industry,  skill  and  credit.  He  has  no  right  to  be 
protected  against  competition;  but  he  has  a  right  to  be  free  from 
malicious  and  wanton  interference,  disturbance  or  annoyance.  If 
disturl)ance,  or  loss,  come  as  a  result  of  competition,  or  the  exercise 
of  likf!  rights  by  others,  it  is  damnnm  abs<]ne  injuria,  unless  som(^ 
sujH'rior  right  l)y  contract  or  otherwise  is  interfered  with.  But  if 
it  come  from  the  merely  wanton  or  malicious  acts  of  others,  with- 
out the  justification  of  competition  or  the  service  of  any  interest 
or  lawful  purpose,  it  then  stands  upon  a  different  footing." 

In  this  case  the  acts  coniplairuMl  of  were  enh-uhited  to  cause  datn- 
age  to  the  plaintiffs,  and  did  actually  cause  sucli  damage;   and  they 


SECT.  IV]  STRIKES   TO    UNIONIZE   SHOPS  315 

wcro  intentionally  dotw  for  that  {jiuposf.  I'nlcs.s,  tlicrcforc,  there 
was  justifiable  cause,  tiie  acts  were  malicious  and  unlawful.  Walker 
V.  Cronin,  iilri  .supra.  Carew  r.  Kutiierford,  1(H»  Mass.  1,  and  cjikcs 
cited  therein. 

The  defendants  coritciid  that  they  iiave  done  nothing  unlawful, 
and,  in  support  of  that  contention,  they  .say  that  a  jn-rson  may  work 
for  whom  lie  pleases;  and,  in  the  ah.setice  of  any  contract  to  the 
contrary,  may  cease  to  work  when  he  plea.ses,  and  for  any  reason 
whattiver,  whether  the  same  he  good  or  had;  that  he  may  give  notice 
of  his  int<'ntion  in  advance,  with  or  without  stating  the  reason;  that 
what  one  man  may  do  several  men  acting  in  concert  may  do,  and 
may  agree  heforeliand  that  the\'  will  do,  and  may  give  notice  of  the 
agreement;  and  that  all  this  may  Ixi  lawfully  done  notwithstanding 
such  concert(>d  action  may,  by  reason  of  the  con.sequent  int<'rruption 
of  the  work,  result  in  great  lo.ss  to  th;^  employer  and  his  other  em- 
ployees, and  that  such  a  result  w;is  intendetl.  In  a  general  .sense, 
and  without  reference  to  exceptions  arising  out  of  conflicting  public 
and  private  interests,  all  this  may  be  true. 

It  is  said  also  that,  where  one  ha,s  the  lawful  right  to  do  a  thing, 
the  motive  by  which  he  is  actuated  is  immaterial.  One  f(jrm  of  this 
statement  appears  in  tiie  first  headnote  in  Allen  r.  Flood,  a.s  re- 
ported in  [189.S]  A.  C  1,  lus  follows:  "An  act  lawful  in  itself  is  not 
converted  by  a  malicious  or  bad  motive  into  an  unlawful  act  so  as 
to  make  the  doer  of  the  act  liable  to  a  civil  action."  If  the  mean- 
ing of  this  and  similar  (\\pressions  is  that  where  a  person  has  the 
lawful  right  to  do  a  thing  irrespective  of  his  motive,  his  motive  is 
innnaterial,  the  proposition  is  a  mere  truism.  If,  how(n'er,  the  mean- 
ing is  that  where  a  person,  if  actuated  by  one  kind  of  a  motive,  has 
a  lawful  right  to  do  a  thing,  the  act  is  lawful  wlien  done  under  any 
conceivable  motive,  or  that  an  act  lawful  under  one  set  of  circum- 
stances is  therefore  lawful  under  every  conceivable  set  of  circum- 
stances, the  proposition  does  not  commend  it.self  to  us  as  either  logi- 
cally or  legall}'  accurate. 

In  so  far  as  a  right  is  lawful,  it  is  lawful,  and  in  many  cases  the 
right  is  so  far  absolute  as  to  Ije  huvful  whatever  may  be  the  motive 
of  the  actor,  as  where  one  digs  upon  his  own  land  for  water  (Green- 
leaf  V.  Francis,  l.S  Pick.  117),  or  makes  a  written  lease  of  his  land 
for  the  purpo.se  of  t(M-minating  a  tenancy  at  will  ((^troustra  r.  Rourges, 
141  Mass.  7),  but  in  many  cases  the  lawfulness  of  an  act  which  cau.ses 
damage  to  another  may  depend  upon  whether  the  act  is  for  ju.sti- 
fiable  cause;  and  this  justification  may  be  found  sometimes  in  tiie 
circumstances  under  which  it  is  doni^  irrespective  of  motive,  .some- 
times in  th<>  motive  alone,  and  .sometim(^s  in  the  circumstances  and 
motive  combined.   .   .   . 

In  cases  sonunvhat  nkin  to  the  one  at  bar  this  court  has  had  oc- 
casion to  consi(l(M-  fh(>  (juestion  how  far  acts,  manifestly  coercive 
and  intimidating  in  tiieir  nature,  which  cause  damage  and  injury 


316  LEGALITY   OF  ENDS   PURSUED  [CHAP.  V 

to  the  business  or  propert}-^  of  another,  and  are  done  with  intent  to 
cause  such  injury  and  partlj^  in  rehance  upon  such  coercion,  are 
justifiable. 

In  Bowen  v.  Matheson,  14  AUen,  499,  it  was  held  to  be  lawful  for 
persons  engaged  in  the  business  of  shipping  seamen  to  combine  to- 
gether into  a  society  for  the  purpose  of  competing  with  other  per- 
sons engaged  in  the  same  business,  and  it  was  held  lawful  for  them, 
in  pursuance  of  that  purpose,  to  take  men  out  of  a  ship,  if  men  shipped 
by  a  non-member  were  in  that  ship;  to  refuse  to  furnish  seamen 
through  a  non-member;  to  notify  the  public  that  they  had  combined 
against  non-members,  and  had  "laid  the  plaintiff  on  the  shelf";  to 
notify  the  plaintiff's  customers  and  friends  that  the  plaintiff  could 
not  ship  seamen  for  them;  and  to  interfere  in  all  these  ways  with 
the  business  of  the  plaintiff  as  a  shipping  agent,  and  compel  him  to 
abandon  the  same.  The  justification  for  these  acts,  so  injurious  to 
the  business  of  the  plaintiff  and  so  intimidating  in  their  nature,  is 
to  be  found  in  the  law  of  competition.  No  legal  right  of  the  plaintiff 
was  infringed  upon,  and,  as  stated  by  Chapman,  J.,  in  giving  the 
opinion  of  the  court  (p.  503),  "if  their  effect  is  to  destroy  the  busi- 
ness of  shipping-masters  who  are  not  members  of  the  association, 
it  is  such  a  result  as  in  the  competition  of  business  often  follows  from 
a  course  of  proceeding  that  the  law  permits."  The  primary  object 
of  the  defendants  was  to  build  up  their  own  business,  and  this  they 
might  lawfully  do  to  the  extent  disclosed  in  that  case,  even  to  the 
injury  of  their  rivals. 

Similar  decisions  have  been  made  in  other  courts  where  acts  some- 
what coercive  in  their  nature  and  effect  have  been  held  justifiable 
under  the  law  of  competition.  Mogul  Steamship  Co.  v.  McGregor, 
[1892]  A.  C.  25.  Bohn  Manuf.  Co.  v.  Hollis,  54  Minn.  223.  Ma- 
cauley  v.  Tierney,  19  R.  I.  255. 

On  the  other  hand,  it  was  held  in  Carew  v.  Rutherford,  106  Mass. 
1,  that  a  conspiracy  against  a  mechanic,  — who  is  under  the  neces- 
sity of  employing  workmen  in  order  to  carry  on  his  business,  —  to 
obtain  a  sum  of  money  from  him  which  he  is  under  no  legal  obliga- 
tion to  pay,  by  inducing  his  workmen  to  leave  him,  or  by  deterring 
others  from  entering  into  his  employ,  or  by  threatening  to  do  this 
so  that  he  is  induced  to  pay  the  money  demanded,  under  a  reasonable 
apprehension  that  he  cannot  carry  on  his  business  without  yielding 
to  the  demands,  is  an  illegal,  if  not  a  criminal,  conspiracy;  that  the 
acts  done  under  it  are  illegal,  and  that  the  money  thus  obtained  may 
be  recovered  back.  Chapman,  C.  J.,  speaking  for  the  court,  says 
that  there  is  no  doubt  that,  if  the  parties  under  such  circumstances 
succeed  in  injuring  th(^  business  of  the  mechanic,  they  are  liable  to 
pay  all  the  damages  done  to  him. 

That  case  bears  a  close  analogy  to  the  one  at  bar.  The  acts  thow 
threatened  were  like  those  in  this  case,  and  the  purpose  was,  in  sub- 
stance, to  force  the  plaintiff  to  give  his  work  to  the  defendants,  and 


SECT.  IV]  STRIKES   TO    UNIONIZE   SHOPS  317 

to  extort  from  him  a  fine  because  he  had  given  some  of  lii,s  work  to 
other  fx.'rson.s. 

With(jut  now  indicating  to  what  extent  workmen  may  c(jmljine 
and  in  pursuance  of  an  agreement  may  act  l*y  means  of  strikes  and 
boycotts  to  get  the  hours  of  labor  reduced  or  their  wages  increased, 
or  to  procure  from  their  employers  any  otljcr  concession  directly 
and  immediately  affecting  their  own  interests,  or  to  help  themselves 
in  comiM'tition  with  their  fellow-workmen,  we  think  this  case  must 
be  governed  l»y  the  piinciples  laid  (hnvn  in  C'arew  v.  Rutherford, 
vM  supra.  The  purpose  of  these  defendants  was  to  force  the  plain- 
tiffs to  join  the  defendant  association,  and  to  that  end  they  injure<l 
the  plaintiffs  in  their  business,  and  molested  and  tlisturln-d  them 
in  their  efforts  to  work  at  their  trade.  It  is  true  they  conunitted 
no  acts  of  |x*r.sonal  violence,  or  of  physical  injury  to  projx'rty,  al- 
though they  threatened  to  do  something  which  might  rea.sonably 
\)e  ex[K>cteiI  to  lead  to  such  results.  In  their  threat,  how<'ver,  there 
was  plainly  that  which  was  coercive  in  its  effect  upon  the  will.  It 
is  not  necessary  that  the  liberty  of  the  l)o(ly  should  lx»  restrained. 
Restraint  of  the  mind,  provided  it  would  be  such  as  would  Ik'  likely 
to  force  a  man  against  his  will  to  grant  the  thing  demanded,  and 
actually  has  that  effect,  is  sufficient  in  cases  like  this.  .   .   . 

It  was  not  the  intention  of  the  defendants  to  give  fairly  to  the 
employer  the  option  to  employ  them  or  the  plaintiffs,  but  to  com|x^l 
the  latter  against  their  will  to  join  the  association,  and  to  that  end 
to  molest  and  interfere  with  them  in  their  efforts  to  procure  work 
by  acts  and  thnnits  well  calculated  by  their  coercive  and  intimidating 
nature  to  overcome  the  will. 

The  defendants  might  make  such  lawful  rules  as  they  please  for 
the  regulation  of  their  own  conduct,  i)ut  they  had  no  right  to  force 
other  persons  to  join  them. 

The  necessity  that  the  plaintiffs  should  join  this  a.s.sociation  is 
not  so  great,  nor  is  its  relation  to  the  rights  of  the  defendants,  as 
compared  with  the  right  of  the  plaintiffs  to  be  free  from  molestation, 
such  :is  to  bring  the  acts  of  the  defendants  under  the  shelter  of  the 
principles  of  trade  competition.  Such  acts  are  without  justification, 
and  therefore  are  malicious  and  unlawful,  and  the  conspiracy  thus 
to  force  the  plaintiffs  was  unlawful.  Such  conduct  is  intoleral)l(% 
and  inconsistent  with  the  spirit  of  our  laws.  .  .  . 

As  the  plaintiffs  have  been  injured  by  these  acts,  and  there  is 
reason  to  believe  that  the  th^fendants  contemplate  further  pro- 
ceedings of  the  same  kind  which  will  be  likely  still  more  to  injure  the 
plaintiffs,  a  bill  in  equity  lies  to  enjoin  the  (U^fcndants.    Vegelahn  r. 

Guntner,  107  Mass.  92.  ...  n     .     ^^  ^^,„^j„ 

'  Dicnc  accordingly. 

Holmes,  C.  .1.  Wlien  a  question  has  l)e(>n  decided  by  the  court, 
I  think  it  proper,  as  a  general  rule,  that  a  dissenting  judge,  how- 
ever strong  his  coiivinctions  iiia\-  Ik-,  sliould  thereafter  accept   the 


318  LEGALITY   OF   ENDS   PURSUED  [CHAP.  V 

law  from  the  majority  and  leave  the  remedy  to  the  Legislatm-e,  if 
that  body  sees  fit  to  interfere.  If  the  decision  in  the  present  case 
simply  had  relied  upon  Vegelahn  v.  Guntner,  167  Mass.  92,  I  should 
have  hesitated  to  say  anj'thing,  although  I  might  have  stated  that 
my  personal  opinion  had  not  been  weakened  b}'  the  substantial 
agreement  with  my  views  to  be  found  in  the  judgments  of  the  ma- 
jority of  the  House  of  Lords  in  AUen  v.  Flood,  [1898]  A.  C.  1.  But 
much  to  my  satisfaction,  if  I  may  say  so,  the  court  has  seen  fit  to 
adopt  the  mode  of  approaching  the  question  which  I  believe  to  be 
the  correct  one,  and  to  open  an  issue  which  otherwise  I  might  have 
thought  closed.  The  difference  between  mj-  brethren  and  me  now 
seems  to  be  a  difference  of  degree,  and  the  line  of  reasoning  followed 
makes  it  proper  for  me  to  explain  where  the  difference  lies. 

I  agree  that  the  conduct  of  the  defendants  is  actionable  unless 
justified.    May  v.  Wood,  172  Mass.  11,  14,  and  cases  cited.    I  agree 
that  the  presence  or  absence  of  justification  may  depend  upon  the 
object  of  their  conduct,  that  is,  upon  the  motive  with  which  they 
acted.     Vegelahn  v.  Guntner,  167  Mass.  92,  105,  106.     I  agree,  for 
instance,  that  if  a  boycott  or  a  strike  is  intended  to  override  the 
jurisdiction  of  the  courts  by  the  action  of  a  private  association,  it 
may  be  illegal.    Weston  v.  Barnicoat,  175  Mass.  454.    On  the  other 
hand,  I  infer  that  a  majority  of  my  brethren  would  admit  that  a 
boycott  or  strike  intended  to  raise  wages  directly  might  be  lawful, 
if  it  did  not  embrace  in  its  scheme  or  intent  violence,  breach  of  con- 
tract, or  other  conduct  unlawful  on  grounds  independent  of  the  mere 
fact  that  the  action  of  the  defendants  was  combined.     A  sensible 
workingman  would  not  contend  that  the  courts  should  sanction  a 
combination  for  the  purpose  of  inflicting  or  threatening  violence  or 
the  infraction  of  admitted  rights.     To  come  directly  to  the  point, 
the  issue  is  narrowed  to  the  question  whether,  assuming  that  some 
purposes  would  be  a  justification,  the  purpose  in  this  case  of  the 
threatened  ])oycotts  and  strikes  was  such  as  to  justify  the  threats. 
That  purpose  was  not  directly  concerned  with  wages.     It  was  one 
degree  more  remote.     The  immediate  object  and  motive  was  to 
strengthen  the  defendants'  society  as  a  preliminary  means  to  enable 
it  to  make  a  better  fight  on  questions  of  wages  or  other  matters  of 
clashing  interests.     I  differ  from  my  brethren  in  thinking  that  the 
threats  were  as  lawful  for  this  preliminary  purpose  as  for  the  final 
one  to  which  strengthening  the  union  was  a  means.     I  think  that 
unity  of  organization  is  necessary  to  make  the  contest  of  labor  ef- 
fectual, and  that  societies  of  lal)orers  lawfully  may  employ  in  their 
preparation  the  means  which  they  might  use  in  the  final  contest.^  .  .  . 

'  The  dor-trine  that  a  strike  to  compel  the  discharp;e  of  non-union  employees 
is  Iter  sc  illegal  is  followed  by  Massachusetts  (although  difhcult  to  reconcile  with 
("otiiuionwcalth  r.  Hunt,  4  Metcalf,  111)  and  apparently  by  New  Jersey,  Pennsyl- 
vania, Vermont,  and  perhaps  Maryland  and  New  naini)shire.  See,  in  addition 
to  the  Massachusetts  cases,  Lucke  v.  Clothing  Cutters,  77  Md.  396  {semble) 


SECT.  IV]  STRIKES    TO    UNIUMZE    SHOPS  319 

KEMP  V.  DIVISION  No.  241 

Supreme  Court  of  Illinois.     1912 

255  lU.  213 

Appeal  from  tlic  judgnuMit  of  the  Branch  Appellate  Court  for 
the  First  District,  overruling  a  deniurror  to  a  bill  for  injunction  and 
entering  a  decree  in  accordance  with  the  prayer  of  tlic  hill. 

Mr.  Justice  Cooke  delivered  the  opinion  of  the  court.  .  . 

The  hill  was  filed  hy  I'ight  employees  of  the  Chiciig(j  Hailways 
Co.  against  Division  2U  of  the  .Vmalgamated  Association  (if  Street 
and  Electric  Ilailway  Employees  of  America,  a  corporation,  and  the 
officers  and  the  members  of  the  executive  board  of  Di\'i.si()ii  211. 
Its  purpose  was  to  obtain  an  injunction  restraining  the  apiM-llants, 
their  agents,  servants  and  attorneys,  from  attempting  to  procure, 
by  means  of  threats,  the  discharge  of  the  appellees  from  the  service 
of  the  Chicago  liiiilways  Co.  because  of  the  fact  that  the  appellees 
are  not  meml)ers  of  said  Division  241.   .   .   . 

The  only  reasonable  conclusion  to  be  deduced  from  the  allegations 
and  prayer  of  the  bill  is,  that  appellees  by  this  proceeding  seek  to 
restrain  the  union  and  its  officers  from  calling  a  strike  of  its  mem- 
bers, the  obvious  purpo.se  of  the  injunction  sought  Ix'ing  to  prevent 
the  union  employees  of  the  Railways  Co.  from  quitting  their  em- 
ployment in  accordance^  with  the  vot<>  previoush'  taken,  by  which 
those  employees,  as  memlx^rs  of  the  union,  declared  that  they  would 
"cease  to  work  with  men  who  after  receiving  Ix^nefits  through  our 
organization  refuse  to  continue  members,"  apiK'llees  Ijelonging  to 
the  chuss  of  men  with  which  the  union  emi)loyees  had  thus  declared 
they  would  no  longer  work.  The  question  presented  for  our  deter- 
mination therefore  is,  whether  a  court  of  equity  is  authorized,  U{)on 
application  by  the  non-union  employees,  to  restrain  the  union  and 
its  officers  from  calling  a  strike  of  the  union  employees  in  accordance 
with  the  vote  previously  taken  by  the  union  employees  as  memlxTS 
of  the  union,  where  the  purpose  of  the  proposed  strike  is  to  comjx'l 
the  employer  to  discharge  the  non-union  employees  who  are  engaged 
in  the  same  class  of  work.  In  order  to  decide  this  (luestion  in  the 
affirmative  it  would  be  necessary  to  hold  that  liad  the  threatened 
act  been  completed,  appellees  would  have  been  entitled  to  main- 
tain an  action  for  damages  against  the  union  and  its  officers  for  ac- 
complishing their  discharge  from  the  .service  of  the  Railways  Co., 
and  that  such  action  at  law  would  not  afTord  an  ade(juate  remedy 
because  of  the  financial  inability  of  appellants  to  respond  in  ade- 

(thrcat  of  boycotf) ;  Ruddy  v.  Plumbers,  79  N.  J.  L.  407  fbut  compare  Mayer  v. 
Journoymcn  Stonecutters'  .Vs-sn.,  47  N.  J.  Eq.  .'jIO,  .'>2t(,  and  .Jersey  City  Printing 
Co.  V.  Cas-sidy,  ()3  N.  J.  Etj.  750,  at  p.  7021;   Erdman  r.  Mitchell^  207  Pa.  St.  79; 
Bausbach  v.  ReifF,  244  Pa.  .550;    State  c  Dyer.  07  Vt.  000.     .Mthouph  this  d«K'-| 
trine  was  once  law  in  Connecticut  and  Illinois,  it  has  apparently  l)ecn  overruled  [ 
by  subsequent  cases  within  tho.sc  states  (see  note,  p.  311,  supra). 


320  LEGALITY   OF   ENDS   PURSUED  [CHAP.  V 

quale  damages  for  the  injuries  which  appellees  would  suffer  by  rea- 
son of  their  discharge.  The  inadequacy  of  the  remedy  at  law  suffi- 
ciently appears  from  the  bill,  and  it  will  only  be  necessary  to  deter- 
mine whether  the  appellees  would  have  been  entitled  to  maintain 
the  action  for  damages  had  their  discharge  been  accomplished  by 
appellants.  .  .  . 

Every  employee  has  a  right  to  protection  in  his  employment  from 
the  wrongful  and  malicious  interference  of  another  resulting  in  dam- 
age to  the  employee,  but  if  such  interference  is  but  the  consequence 
of  the  exercise  of  some  legal  right  by  another  it  is  not  wrongful,  and 
cannot,  therefore,  be  made  the  basis  for  an  action  to  recover  the 
consequent  damages.  It  is  the  right  of  every  workman,  for  any 
reason  which  may  seem  sufficient  to  him,  or  for  no  reason,  to  quit 
the  service  of  another,  unless  bound  by  contract.  This  right  cannot 
be  abridged  or  taken  away  by  any  act  of  the  legislature,  nor  is  it  sub- 
ject to  any  control  by  the  courts,  it  being  guaranteed  to  every  per- 
son under  the  jurisdiction  of  our  government  by  the  thirteenth  amend- 
ment to  the  Federal  constitution,  which  declares  that  involuntary 
servitude,  except  as  a  punishment  for  crime,  shall  not  exist  within 
the  United  States  or  any  place  subject  to  their  jurisdiction.  In- 
cident to  this  constitutional  right  is  the  right  of  eveiy  workman 
to  refuse  to  work  with  any  co-employee  who  is  for  any  reason  ob- 
jectionable to  him,  provided  his  refusal  does  not  violate  his  contract 
with  his  employer;  and  there  is  no  more  foundation  for  the  con- 
tention that  the  employee  commits  an  actionable  wrong  by  inform- 
ing the  employer,  before  he  leaves  the  service,  that  he  will  not  work 
with  the  objectionable  co-employee,  and  thereby  occasioning  his 
discharge,  than  there  would  be  for  the  contention  that  the  employee 
would  commit  an  actionable  wrong  by  quitting  the  service  and 
afterward  stating  to  the  employer  his  reason  therefor,  if  as  a  result 
thereof  the  employer  should  choose  to  discharge  the  objectionable 
co-employee.  In  either  case  the  employee  is  exercising  a  legal  right, 
and  although  it  results  in  damage  to  the  objectionable  co-employee, 
the  latter  has  no  cause  of  action  against  the  former  for  causing  his 
discharge.  In  the  case  at  bar,  had  the  union  employees,  as  individ- 
uals and  without  any  prearranged  concert  of  action,  each  informed 
the  Railways  Co.  that  they  would  no  longer  work  with  appellees 
because  appellees  were  not  members  of  the  union,  and  had  appel- 
lees, in  consequence  thereof,  been  discharged  because  the  Railways 
Co.  chose  to  retain  the  services  of  the  imion  employees,  appellees 
would  have  had  no  cause  of  action  against  the  union  employees  for 
thus  causing  their  discharge.  Does  the  fact  that  the  union,  its  officers 
and  committees,  acted  as  an  intermediary  between  the  union  em- 
ployees and  the  Railways  Co.,  and  under  the  circumstances  and 
for  the  purposes  disclosed  by  t\u)  bill,  render  unlawful  the  action 
by  it  or  them  which  would  have  been  lawful  if  performed  by  the 
union  employees  individually? 


SECT.  IV]  STRIKES   TO    UNIONIZE   SHOPS  321 

Laljor  unions  have  long  since  Ix'en  recognized  by  the  courts  of 
this  country  as  a  legitimate  part  of  the  industrial  system  of  this 
nation.  The  ultimate  puiixjse  of  such  (jiganizations  is,  thnjugh 
combination,  to  advance  tiie  interests  of  the  memlx'rs  by  (jblaining 
for  them  adequate  comixiiisation  for  their  labor,  and  it  ha,s  Ijeen 
frequently  decided  by  the  American  courts  that  the  fact  that  this 
puri)ose  is  sought  to  Ix?  obtained  through  combination  or  concerted 
action  of  I'mployees  does  nc^t  n.'nder  the  means  unlawful.  .  .  . 
The  members  of  the  union  .  .  .  did  not  propose  abs(jlutely  to 
sever  their  connection  with  their  employer,  but  by  means  of  a  strike 
to  withdraw  temporarily  their  services,  and  then,  by  such  means  a.s 
might  be  j)roi)er  and  permi.ssible,  .seek  to  induce  their  em|)loyer  to 
accede  to  tiieir  demands  and  reinstate  them  in  the  .service  umler 
the  conditions  they  .sought  to  impo.se.  By  thus  combining  it  be- 
comes necessary  to  inquire  whether  the  i)ur[)ose  of  the  combination 
wtus  a  lavv^ful  one. 

Ordinarily  it  is  true  that  what  one  individual  may  riglitfully  do 
he  may  do  in  combination  with  others.  In  .some  jurisdictions  the 
qu(^stion  of  the  purpo.se  or  motive  in  such  cases  as  this  is  not  in- 
quired into.  But  in  other  jurisdictions  the  opposite  view  is  held, 
for  the  very  apparent  rea-son  that  acts  done  by  a  combination  of 
individuals  may  be  made  much  more  potent  and  effective  than  the 
same  acts  done  by  an  individual,  and  we  Ix^lieve  the  greater  weight 
of  authority  to  be,  that  what  one  individual  may  lawfully  do  a  com- 
bination of  individuals  h;is  the  same  right  to  do,  provided  they  have 
no  unlawful  purpose  in  view.  Would  the  calling  of  a  strike,  and  the 
inducing  of  an  employer  thereby  to  accede  to  the  demands  of  the 
union  employees  and  to  discharge  appellees  under  the  circum.stances 
disclosed,  be  such  an  interference  with  the  rights  of  appellees  as  to 
be  wrongful  and  malicious? 

It  has  been  ^comparativ(^ly  but  a  short  time  since  it  was  unlawful 
for  workmen  to  associate  themselves  together  under  such  organ- 
izations as  are  now  known  as  trades  unions,  for  the  purpo.se  of  im- 
proving the  conditions  of  labor  Such  an  organization  was  formerly 
held  to  be  a  criminal  conspiracy,  and  it  re(}uired  .^^tatutory  enact- 
ment in  England  to  permit  workmen  legally  to  combine  for  the  pur- 
pose of  maintaining  satisfactory  wages  and  for  mutual  protection. 
The  right  of  labor  to  organize,  and  to  strik(\  if  neces.sary,  without 
resort  to  violence  or  other  unlawful  conduct,  for  the  Ix'tterment  of 
the  condition  of  labor,  is  now  generally  recognized  by  th(>  courts  of 
this  country.  .  .  . 

While  it  cannot  Ix*  successfully  contended  that  every  strike  is 
lawful,  it  is  generally  concedc^l  by  our  courts  that  workmen  may 
quit  in  a  body,  or  strike,  in  order  to  maintain  wages,  secure  advance- 
ment in  wages,  procure  shorter  hours  of  (Muployment  or  attain  any 
other  legitimate  object.  An  agreement  by  a  combination  of  in- 
dividuals to  strike  or  quit  work  for  the  purpose  of  advancing  their 


322  LEGALITY   OF   ENDS   PURSUED  [CHAP.  V 

own  interests  or  the  interests  of  the  union  of  which  they  are  mem- 
bers, and  not  having  for  its  primary  object  the  pm-pose  of  injuring 
others  in  their  business  or  employment,  is  lawful.  As  to  whether 
the  object  which  this  bill  discloses  was  sought  to  be  attained  by  the 
members  of  the  union  was  a  lawful  one  or  a  valid  justification  of  the 
threat  to  strike,  the  authorities  in  this  country  are  clearly  in  con- 
flict. Among  the  cases  in  other  jurisdictions  upon  which  appel- 
lees rely  in  support  of  their  contentions  on  this  point  are  Berry 
V.  Donovan,  188  Mass.  353,  Erdman  v.  Mitchell,  207  Pa.  79,  Lucke  i\ 
Clothing  Cutters,  77  Md.  396,  Plant  v.  Woods,  176  Mass.  492,  and 
.Curran  v.  Galen,  152  N.  Y.  33.  That  some  of  the  cases  cited  by  ap- 
pellees support  their  contention  cannot  be  denied.  A  contrary  result 
has  been  reached,  however,  by  the  courts  of  some  of  the  other  states. 
This  precise  question  has  never  been  passed  upon  in  this  state,  and 
were  the  position  of  appellees  to  be  sustained  it  would  be  a  long  step 
in  advance  of  any  decision  of  this  court.  In  the  unsettled  condition 
of  the  law  on  this  question  we  are  not  disposed  to  follow  the  cases 
cited  by  appellees.  We  are  of  the  opinion  that  the  cases  holding  the 
contrary  view  are  supported  by  the  better  reasoning.  .  .  . 

It  is  insisted  that  a  strike  is  lawful  only  in  a  case  of  direct  com- 
petition, and  as  it  cannot  be  said  that  the  union  employees  are  in 
any  sense  competing  with  appellees,  their  acts  cannot  be  justified. 
It  is  true,  as  has  been  stated,  that  the  proposed  strike  was  not  to  be 
called  for  the  direct  purpose  of  securing  better  wages  or  shorter 
hours  or  to  prevent  a  reduction  of  wages,  any  one  of  which  would 
have  been  a  proper  object.  The  motive  was  more  remote  than 
that,  but  it  was  kindred  to  it.  The  purpose  was  to  strengthen  and 
preserve  the  organization  itself.  Without  organization  the  work- 
men would  be  utterly  unable  to  make  a  successful  effort  to  maintain 
or  increase  their  wages  or  to  enforce  such  demands  as  have  been 
held  to  be  proper.  .  .  . 

If  it  is  proper  for  workmen  to  organize  themselves  into  such  com- 
binations as  labor  unions,  it  must  necessarily  follow  that  it  is  proper 
for  them  to  adopt  any  proper  means  to  preserve  that  organization. 
If  the  securing  of  the  closed  shop  is  deemed  by  the  membei's  of  a 
labor  union  of  the  utmost  impoi-tanco  and  necessary  for  the  preser- 
vation of  their  organization,  through  which,  alone,  the}'  have  been 
enabled  to  secure  better  wages  and  better  working  conditions,  and 
if  to  secure  that  is  the  primary  object  of  the  threat  to  strike,  even 
though  in  the  successful  prosecution  of  the  ol^ject  of  the  combina- 
tion injury  may  result  incidentally  to  non-union  men  through  the 
loss  of  their  positions,  that  object  does  not  become  unlawful.  It  is 
apparent  that  in  this  case  the  sole  purpose  was  to  insure  employ- 
ment })y  the  Railways  Co.  of  union  incn,  only.  The  appellees  had 
the  right  to  retain  their  menilMTship  in  the  union  or  not,  as  they 
saw  fit.  On  the  oth(>r  hand,  if  the  nKMubers  of  the  union  honestly 
believed  that  it  was  to  their  best  interests  to  be  engaged  in  the  same 


SECT.  IV]  STRIKKS   TO    U.VKJNIZE   SHOPS  '323 

einphn'mcnt  vvitli  union  iix-ii  only,  iind  that  it  \va.s  a  detriinont  and 
a  menace  to  their  oiKanixation  to  associate  in  the  same  employment 
with  non-ni('nil)('is,  it  was  their  lij^ht  to  inform  the  common  emi)loycr 
tliat  tliey  would  withdraw  from  its  servi<-e  and  strike  unless  mi*m- 
bers  of  the  union,  only,  were  employed,  even  though  an  acquiescence 
in  their  demands  would  incidentally  result  in  the  loss  of  employ- 
ment on  the  part  of  the  non-union  men.  It  was  only  incumlx-nt 
upon  them  to  act  in  a  jx^accful  and  lawful  manner  in  carrying  out 
their  plans.  In  passing  upon  this  (jucstion  tiie  court,  in  Jersey 
City  Printing  Co.  /-.  Cassidy,  iV-i  X.  .1.  Kq.  7")9,  say:  "Union  work- 
men who  inform  their  employer  that  they  will  !<trike  if  he  refu.>ies  to 
dischaifj;i'  all  non-union  workmen  in  his  employ  are  actirifi;  within 
their  absoluti*  ri^^ht,  and,  in  fact,  are  merely  dictating  the  terms 
upon  which  they  will  be  emplove<l."  This  case  was  ai)proved  in 
Booth  Bros.  r.  Burgess,  72  X.  J.  K(\.  isi.  These  cases  hold  that 
motive  is  not  to  hr  considered,  and  that  the  .s('ttle<l  American  doc- 
trine, apart  from  all  rec(Mit  statutes,  is,  that  all  dealers  in  the  market, 
whether  in  merchandi.se  f)r  in  labor,  on  every  side  of  the  market, 
have  an  absoluti'  right  to  combine  voluntarily  to  concurrently  exer- 
cise their  several  rights  to  refrain  from  contracting  if  they  sec  fit  to 
do  so,  and  that  if  this  is  not  good  law,  then  the  right  to  refrain  from 
contracting  is  subjt'ct  to  a  most  extraordinary  limitation,  which 
leads  to  absurd  results.  .  .  . 

In  (iille.-^pie  v.  People*,  ISS  111.  17G,  a  .statute  making  it  a  mis- 
demeanor for  an  employer  to  prevent  m  employee,  by  threats, 
from  joining  a  labor  organization,  or  to  Hscharge  an  emi)loyee  be- 
cause of  memlxMship  in  a  lai)or  organization,  was  held  to  be  uncon- 
stitutional, and  the  right  of  an  employer  to  discharge  his  employee 
solely  because  he  would  not  resign  from  his  union  was  upheld.  That 
employees  might  sutler  l)v  remaining  menil)ers  of  their  unions,  or 
that  th(>y  might  through  necessity  be  comi)elled  to  disl)and  the 
organizations  they  had  built  up  and  maintained  for  their  own  projx^r 
benefit,  could  not  affect  the  right  of  the  employer.  He  has  the  right 
to  manage  his  business  as  he  sees  fit.  It  would  seem  that  lal)or  or- 
ganizations should  be  accorded  the  same  right  to  manage  their 
affairs  and  to  determine  what  is  best  for  their  own  interests.  To 
deny  them  the  right  to  determine  whether  their  best  interests  re- 
quired that  they  should  be  as.sociated  in  their  work  only  with  mem- 
bers of  their  organization  would  imperil  their  very  existence.  If 
they  have  the  right  to  make  such  a  re(juirement,  then  when  their 
emploj-^er  procures  non-union  labor  they  have  the  right  to  strike  to 
enforce  that  requirement,  as  that  is  the  only  peaceable  method  avail- 
able to  compc^l  an  adjustment  of  their  controversies  and  to  preserve 
the  integrity  of  their  organizations.  I'rom  the  facts  as  tlisclosed  by 
the  bill  it  can  only  be  said  that  the  menilu^rs  of  the  union,  upon  de- 
liberation, concluded  that  their  own  welfare  and  Inisine.ss  interests 
required  that  they  cease  working  with  those  who  w(>re  not  uKMnlx^rs 


324  LEGALITY   OF   ENDS   PURSUED  [CHAP.  V 

of  their  organization.  This  being  their  primary  object,  they  have 
the  right  to  quit  the  employment  and  go  upon  a  strike  and  to  use  all 
proper  means  to  secure  their  reinstatement  upon  the  conditions 
desired.  .  .  . 

Here  the  primary  object  of  the  combination  is  to  further  the  in- 
terests of  the  organization  and  improve  and  better  the  condition  of 
its  members.  Whatever  injury  may  follow  to  others  is  merely  in- 
cidental. 

The  judgment  of  the  Appellate  Court  is  reversed  and  the  decree 
of  the  Circuit  Court  is  affirmed. 

Judgment  reversed.^ 

ENGLISH  TRADE  DISPUTES  ACT,  1906,  Sections  3,  4 

6  Edw.  VII,  c.  47 
See  supra,  p.  24,  for  the  text  of  this  Act.^ 

WOLSTENHOLME  v.  ARISS 
Chancery  Division.     1920 

[1920]  2  Ch.  403 

Witness  Action. 

This  second  action  was  brought  by  the  same  plaintiff,  H.  Wol- 
stenholme,  against  Charles  John  Ariss,  the  Secretary,  and  all  the 
members  of  the  committee  of  the  Cardiff  Branch  of  the  Amalgamated 
Musicians'  Union,  alleging  that  they  had  severally  and  acting  in 
combination  amongst  themselves  during  Februar}^,  1919,  and  until 
April  22,  1919,  by  unlawful  threats,  coercion  and  pressure  compollod 
the  plaintiff's  employer  to  break  his  contract  with  the  plaintiff  on 
April  22,  1919,  and  to  dismiss  him,  or  refuse  to  emploj'^  him  any 
longer;  and  the  plaintiff  claimed  an  injunction  to  restrain  the  de- 
fendants, individually  or  collectively,  from  interfering  in  combina- 

'  Carter,  J.,  specially  concurring,  rendered  a  separate  concurring  opinion. 
Cartwright,  J.,  Dunn,  C.  J.,  and  Hand,  .!.,  rendered  a  dissenting  opinion.  — Ed. 

*  For  an  excellent  discussion  of  this  Aft,  sec  Prof.  W.  M.  Goldart,  The  Political 
Quarterly,  No.  2  (May,  1914),  pp.  17  ct  scq.  See  also  Henry  R.  Scager,  The 
Ivcgal  Status  of  Trade  Unions  in  the  ITnited  Kingdom,  22  Pol.  Sci.  Quart.  Gil. 

In  Valentine  v.  Hyde,  |1919]  2  Cli.  120,  where  the  defendants,  certain  union 
employees,  demanded  that  the  j)IaintifT,  their  fellow  employee,  should  join  their 
unif)n,  and  "threatened  to  get  him  discharged  if  he  did  not  join,  downing  tools 
if  the  manager  was  not  willing  to  fiisrharge  liim,"  it  was  held  that  this  was  not 
a  "trade  disputr"  with'n  the  meaning  of  the  Trade  Disputes  Act,  lOOli;  and  the 
court  therefore  granted  an  injunction  restraining  the  defendants  from  "wrong- 
fully interfering  with  the  employment  of  the  plaintiff."  The  Court  of  .\ppeal, 
however,  expressly  disapprove*!  of  this  decision  and  reached  an  ajiparently  con- 
trary result  in  the  suhseriueni  ca.se  of  White  v.  Hiley,  11921]  1  Ch.  1,  infra,  p.  327. 
It  would  .seem  that  whatever  authority  Valentine  r.  Hyde  may  once  have  pos- 
sessed has  heen  lost  by  the  suhsefiuent  decisions  of  Hodges  v.  Webb,  11920]  2 
Ch.  70;  Wol.stenholme  v.  Ariss,  |1920]  2  Ch.  403,  see  infra;  and  White  v.  Riley,. 
[1921]  I  Ch.  1,  infra,  p.  .327. 


SECT.  IV]  BTKIKKS    TO    UNIONIZE    BHOPS  325 

tion  or  otherwiso  with  the  right  of  tlio  ijlainlifT  to  di-spo-sc  of  liis 
hU)Our  as  he  would. 

The  evidence  in  the  first  action,  which  wjus  agreed  to  l>e  treated 
a.s  given  in  this  case  also,  brought  matters  down  to  the  tlate  of  the 
plaintiff's  exi)ulsion  from  tiie  union  on  January  5,  V.)V.). 

On  February  2,  1910,  at  the  ordinary  general  monthly  meeting 
of  the  branch,  a  resolution  was  passed  in  these  terms:  "As  Mr. 
Wolstenholmc  has  now  been  exix-lled  and  is  now  a  non-mcmlxr 
we  the  members  of  tiiis  branch  resolve  that  on  and  after  Monday, 
March  '.i,  1!)1!),  we  will  not  play  with  him,  and  any  memlxT  playing 
with  him  after  above  date  will  be  treated  Jis  a  non-memlK*r."  On 
February  7  the  pa.ssing  of  this  resolution  was  notified  by  the  de- 
fendant, Mr.  Ari.ss,  as  Branch  Secretary,  to  Mr.  Fooks  the  manager, 
and  to  Mr.  (larforth  Mortimer  the  musical  din'ctor  of  the  Park 
Hall  Cinema  where  the  plaintiff  was  at  that  time  employed  and  each 
letter  concluded  with  the  words,  "Please  note  that  aft<'r  above  date 
our  members  will  refuse  to  play  with  Mr.  H.  \\'olstenhoime."  On 
February  In,  Mr.  Mortimer,  on  behalf  of  his  principal,  gave  the 
plaintiff  a  fortnight's  notice  to  terminate  his  engagement.  Such 
notice  would  expire  on  March  1  —  two  days  before  the  date  on  wliidj 
the  resolution  became  effective. 

At  the  time  this  rKvtice  was  given  "Nfr.  Mortimer,  himself  a  mem- 
l3er  of  the  Union,  had  ;vlready  intervened  with  a  view  to  bringing 
about  a  reconciliation  lx!tween  the  plaintiff  and  the  Union,  and  the 
result  of  his  efforts  was  that  the  coming  into  operation  of  the  resolu- 
tion of  February  2  was  from  time  to  time  suspended.  .  .  .  Finally, 
on  April  21,  1019,  Mr.  Ariss  wrote  to  Mr.  Mortimer  as  follows:  "G. 
Mortimer,  E.sq.,  Musical  Director,  Park  Hall  Cinema,  Cardiff.  Dear 
Sir  and  Brother,  The  period  of  grace  granted  to  Mr.  H.  Wolsten- 
holme  has  now  expired,  and  Jis  he  has  not  carried  out  the  expressed 
desire  of  the  Branch  Meeting  in  accordance  with  the  resolution 
pas.sed  by  the  Branch  at  th(>  meeting  held  on  April  G,  the  memlx*rs 
of  the  Branch  will  act  up  to  the  resolution  passed  on  February  2, 
and  will  refuse  to  play  with  him  on  and  after  this  date,  April  21, 
1919.  Yours  fraternally,  Charles  Ariss."  Mr.  Mortimer  thereupon 
gave  the  plaintiff  notice  of  instant  dismissal. 

The  tlefendants  denied  the  allegations  of  the  use  of  unlawful 
threats,  coercion  or  pressure  or  of  having  procured  the  breaking 
by  Mr.  Mortimer  of  his  contract  with  the  plaintiff,  and  submitted 
that  no  action  would  lie  again.st  the  defendants  as  meml)ers  of  the 
Branch,  or  ptM-sonally,  with  respect  to  any  of  the  matters  complained 
of,  and  that  th(>  action  was  misconceived  and  should  be  dismissed.  .  .  . 

.Iun(>  11.  I<:vK,  .1.  (after  stating  the  plaintiff's  allegations  and 
claim  in  the  action  continued):  The  (juestions  I  have  to  decide  are 
primarily  of  fact:  did  the  defcMulants,  or  any  of  them,  by  threats, 
coercion,  and  pressure,  procure  and  compel  tht>  plaintiff's  employer, 
(a)  to  break  his  contract  with  the  plaintiff,  or  (6)  to  refuse  to  employ 


326  LEGALITY   OF   ENDS   PURSUED  [CHAP.  V 

him  any  longer?  [His  Lordship  stated  the  facts  that  took  place 
after  January  5,  1919,  when  the  resolution  excluding  the  plaintiff 
was  passed,  and  continued]:  On  the  evidence  this  action  involved 
no  breach  of  contract  on  the  part  of  the  employer.  The  engage- 
ment pleaded  was,  I  think,  a  weekl}^  one,  but  even  assuming  it  was 
a  seasonal  one  it  was  proved  to  be  subject  to  determination  by  a 
fortnight's  notice.  ...  In  my  opinion  there  was  no  breach  of  con- 
tract on  the  part  of  the  plaintiff's  employer;  the  notice  to  determine 
the  emplojTnent  was  never  withdrawn,  its  operation  was  suspended 
until  the  result  of  Mortimer's  efforts  was  known,  and  when  they  failed 
the  notice  became  simultaneously  operative.  I  cannot,  therefore, 
hold  the  plaintiff  to  have  established  that  the  defendants  procured 
or  compelled  his  employer  to  break  his  contract  with  the  plaintiff. 

There  is  no  doubt  that  it  was  in  consequence  of  the  action  of  the 
Union,  that  is  to  say  of  the  members  of  this  Branch  of  the  Union 
present  at  the  meeting  of  February  2,  that  the  employer  refused  to 
employ  the  plaintiff  any  longer,  but  this  obvious  conclusion  does 
not,  in  itself,  entitle  the  plaintiff  to  relief  in  this  action.  The  mem- 
bers were  quite  within  their  rights  in  refusing  to  play  with  the  plain- 
tiff, and  no  action  could  lie  against  them  or  any  of  them  for  so  doing. 
What  the  plaintiff  has  sought  to  establish  is  that  in  the  assertion  of 
that  right  they  have  threatened  and  coerced  his  employer  into  re- 
fusing further  to  employ  him.  I  find  it  very  difficult  to  lay  my 
finger  on  any  act  which  can  fairly  be  described  as  a  threat  or  as 
coercive. 

It  was  argued  strenuously  that  the  passing  of  the  resolution  of 
Februaiy  2  was,  in  itself,  an  agreement  or  combination  by  the  mem- 
bers who  passed  it  to  do  an  illegal  act  in  that  they  thereby  resolved 
that  any  member  pla3^ing  with  the  plaintiff  after  the  date  therein 
mentioned  should  be  treated  as  a  non-member. 

I  confess  that  I  cannot  follow  this  argument.  If,  by  the  constitu- 
tion of  the  Union,  a  member  loses  his  rights  as  such  by  playing  with 
a  non-member  the  resolution  is  only  a  reminder  of  the  fact:  if,  on 
the  other  hand,  no  such  penalty  attaches  this  resolution  is  quite 
inoperative  to  impose  it;  at  most  it  is  but  the  expression  of  an  in- 
t<>ntion  on  the  part  of  those  who  support  it  so  to  treat  meml)ei-s  who 
disregard  the  earlier  part  of  the  resolution.  And  in  so  resolving  the 
members  were  again  acting  within  their  rights. 

This,  then,  being  the  position,  the  defendants  having  resolved 
to  adopt  a  line  of  conduct  towards  the  plaintiff  and  any  of  their 
fellow  members  who  might  continue  to  play  with  him,  which  th(\y 
were  lawfully  entitled  to  adopt,  what  is  it  that  the  plaintiff  has  to 
establish  before  he  can  maintain  this  action?  He  must  prove  that 
in  order  to  procure  their  oliject  they  have  resorted  to  threats,  co- 
ercion or  other  illegal  means.  In(hicement  not  to  continue  an  em- 
ployment is  illegal  only  if  it  is  exercised  by  the  use  of  illegal  means. 
If  authority  is  recjuired  for  this  proposition  it  is  to  be  found  in  Lord 


1 


SECT.  IV]  STRIKES   TO    UNIONIZE    SHOPS  327 

Watson's  speech  in  Allen  r.  F\ihh\,  [isOs]  A.  C.  1,  9(i,  where  he  says: 
"There  are,  in  my  opinion,  two  gnjunds  only  ujion  which  a  {XTson 
who  procures  the  act  of  another  can  he  niadf  legally  n-sfMinsihlc  for 
its  conse(iuence.  In  the  first  place,  he  will  incur  liahility  if  he  kiKjw- 
ingly  and  for  his  own  ends  induces  that  otiici-  person  t(j  commit  an 
actionable  wron^^.  In  the  second  place,  when  the  act  induced  is 
within  the  right  of  the  inunediate  actor,  and  is  therefore  not  wrong- 
ful so  far  JUS  he  is  concerned,  it  may  yet  he  to  the  detriment  of  a 
third  party;  and  in  that  case,  according  to  the  law  laid  down  hy  the 
majority  in  Lumley  v.  Gye  (1853),  2  E.  &  B.  210,  the  inducer  may 
be  held  liable  if  he  can  be  shown  to  have  procured  his  object  by  the 
use  of  illegal  means  directed  against  that  third  party."  What  then 
are  the  illegal  means  which  the  plaint ilT  alleges  were  used  by  the  de- 
fendants to  carry  out  what  were  legal  acts  in  themselves?  In  sub- 
stance it  was  the  communication  on  February  7  to  the  jjlaintiff's 
employer  and  to  Mr.  Mortimer  of  the  terms  of  the  resolution  of 
February  2.  How  can  this  po.ssibly  be  treated  as  a  u.se  of  illegal 
means?  Can  a  simple  notification  to  the  emj)loyer  of  an  intenti(jn 
to  do  a  lawful  act  or  lawful  acts,  whether  it  \)0  a  notification  on  Ix'- 
half  of  an  individual  or  on  behalf  of  a  numlx>r  of  jx^rsons,  properly 
be  described  as  the  use  of  illegal  means  against  the  i)laintifT?  I  do 
not  think  it  can.  There  may,  of  course,  be  cases  in  which  threats, 
coercion  or  pressure  may  lx»  found  to  have  l)een  employed  without 
any  threats  being  actually  put  into  words,  but  in  this  ca.se  I  am  re- 
lieved from  any  inquiry  whether  there  was  conduct  capable  of  Ix^ing 
so  interpretetl  becau.se  it  is  admitted  that,  apart  from  the  passing 
of  the  resolution  and  the  communication  of  it  to  the  emijloyer  and 
to  Mr.  Mortimer,  there  was  no  threat,  coercion  or  pressure. 

In  these  circumstanc(>s  I  come  to  the  conclusion  that  the  plain- 
tiff has  failed  to  estal)lish  an}'  cause  of  action  against  the  defend- 
ants, or  any  of  them,  and  I  can  only  dismiss  this  action  also  with 
costs. 

WHITE  v.  RILEY 
Court  of  Appeal.    1920 
[1921]  ICh.l 
Appe.\l  from  the  decision  of  Astbury.  J.,  [1920]  W.  N.  182. 
The  action  was  brought  by  the  plaintiff,  a  leather  worker,  and  a 
member  of  the  Workers'  Union,  employed  by  Messrs.  Meek  ami 
Dean,  who  carried  on  business  as  the  Leamore  Currying  Co.  at  Wal- 
sall, against  the  defendants,  who  were  employed  by  the  same  firm 
and  were  memliers  of  the  (^u'riers'  Union,  for  an  injmiction  and  dam- 
ages, alleging  that  by  conspiracy,  threats,  intimidation,  and  coercion 
they  had  causetl  his  dismissal  from  his  employment  and  procuretl  a 
breach  by  his  employers  of  their  contract  with  him. 

Astbuiy,  .1..  held  on  the  evidence  tiiat  the  defendants  had  con- 
spired to  injure  tlie  plaintiff  by  obtaining  his  dismissal  simply  l>e- 


328  LEGALITY   OF   ENDS   PURSUED  [CHAP.  V 

cause  he  would  not  forsake  his  own  union  and  join  that  of  the  de- 
fendants, and  that  they  had  induced  and  intentionally  procured  a 
direct  breach  of  contract  bj'  his  emploj'ers.  He  accordingly  gave 
judgment  for  the  plaintiff,  the  damages  being  assessed  at  75/. 

The  defendants  appealed.  .  .  . 

Warrington,  L.  J.^  ,  .  .  The  facts  have  already  been  stated 
by  the  ]Master  of  the  Rolls,  and  it  is  quite  unnecessary  for  me  to  go 
over  them  again;  but  I  must  just  give  a  short  summary.  The  plain- 
tiff and  the  two  defendants  were  in  the  year  1919  employed  as  cur- 
riers under  the  same  employer,  the  Leamore  Currying  Co.,  which 
consisted  of  two  gentlemen  carrying  on  business  in  co-partnership. 
The  defendants  were  both  of  them,  as  were  all  the  men  employed  in 
the  shop  except  the  plaintiff,  members  of  an  old  craft  union,  which 
I  will  call,  for  shortness,  the  Curriers'  Union.  It  was  a  craft  union 
that  was  established  some  200  years  ago,  its  object  being  to  protect 
the  interests  of  workmen  who  were  by  their  calling  curriers,  and 
those  alone.  The  Curriers'  Union  comprises  only,  I  think,  skilled 
workers  in  the  curriers'  trade.  The  plaintiff  was  a  member  of  a  large 
omnium  gatherum  union  called  the  Workers'  Union,  which  com- 
prises amongst  its  members  skilled  workmen  and  non-skilled  labourers 
of  all  classes  not  confined  to  any  particular  craft,  but  ready  to  wel- 
come as  a  member,  any  artisan  or  labourer  whatever  may  be  the 
nature  of  his  employment.  It  appears  to  be  the  policy  of  the  craft 
union  to  insist  so  far  as  may  be  that  the  workers  in  the  craft  should 
be  members  of  the  Union  and  should  not  belong  to  such  a  union  as 
the  Workers'  Union  in  order  that  the  craft  union,  who  devote  them- 
selves to  the  interests  of  that  craft  in  particular,  may  be  the  persons 
and  the  only  persons  who  shall  be  entrusted  with  the  duty  of  negotiat- 
ing with  the  employers  and  furthering  the  interest  of  the  men  em- 
ployed in  that  craft.  That  in  itself  is  a  perfectly  reasonable  and 
intelligible  policy.  It  is  for  the  consequence  of  carrying  out  that 
policy  in  this  particular  shop  that  the  two  defendants  are  sued  in 
the  present  action.  It  is  said,  first,  that  they  have  knowingly  pro- 
cured from  the  employers  the  breach  of  their  legal  o])ligations  to 
the  plaintiff,  that  is  to  say,  a  breach  on  their  part  of  the  plaintiff's 
contract  of  employment,  and,  secondly,  that  they  have  by  illegal 
means  procured  the  non-emplojTnent  of  the  plaintiff  by  the  employers 
without  any  breach  of  contract  on  his  part.  On  the  pleadings  as 
exphiiiied  by  a  certain  admission  made  upon  an  application  for 
particulars  (that  is  putting  aside  for  the  moment  tlic  breach  of  con- 
tract which  is  only  very  vaguely  pleaded),  the  procuring  of  the  re- 
fusal by  the  employers  to  employ  the  plaintiff  is  said  to  have  been 
brought  about  by  threats,  intimidation  and  coercion;  but  that  was 
limited  in  the  way  I  have  suggested  to  this  —  tliat  the  threats,  coer- 
cion and  intimidation  complained  of  are  that  the  defendants  thrcat- 

•  Separate  concurring  opinions  were  rendered  by  Lord  Stemdale,  M.  R.,  and 
by  YounKcr,  L.  J.  —  Kd. 


SECT.  IV]  STRIKES   TO    UNIONIZE    SHOPS  329 

cned  the  einplfnors  tliiit  the  hihoiir  of  the  worknicn  in  the  deferidiint.s' 
uiii<Mi  would  be  witlidrawii  from  tlic  <'rMpl(n<*r.s,  and  so  i.'oerced  and 
intimidated  the  employers.  The  only  .so-called  threat  of  which  any 
evidence  was  ji;iven  consisted  of  a  letter  signed  by  the  defendant 
Riley,  and  written  on  behalf  of  the  men  wIkj  had  Ix'en  pre.sent  at  the 
shop  meeting.  [It  is  addres.sed  to  thi>  firm  and  was  in  the  following 
terms:  "Sirs,  We  hereby  give  you  notice  that  we  shall  cea.-^*'  work  on 
Friday  next  unless  Iv  White  either  joins  our  Society  or  leaves  your 
employment."]  No  other  threat  is  alleged  except  that,  at  a  sub.se- 
({uent  meeting  between  the  men  and  the  employers,  the  m«'n,  through 
their  spokesman,  detenniiicd  to  adlien-  to  the  notice  wliich  tln-v  had 
already  giv<'n. 

Now  the  question  arises,  is  the  giving  of  a  notice  of  that  kind  on 
behalf  of  the  men  a  wrongful  act,  I  mean  at  common  law  (}uite  indc- 
pcMulently  of  the  Trade  Disputes  Act,  1906?  That  an  act  of  that 
kind  done  i)v  an  individual  is  iKjt  at  common  law  a  wrongful  act  is 
I  think  quite  plain  from  the  decision  in  Allen  v.  Flood,  [1898]  A.  C  1. 
An  act  of  that  kind  done  by  a  number  of  men  is,  to  my  mind,  shown 
not  to  be  an  unlawful  act  at  conunon  law,  not  directly  by  the  decision 
in  Allen  r.  Flood  but  by  the  judgments  at  all  events  of  three  of  the 
noble  and  learned  Lords  who  addressed  the  House  in  that  ca.se  — 
namely.  Lord  Watson,  Lord  Herschell  and  Lord  Macnaghten.  .  .  . 
I  would  further  point  out  this  as  the  result  of  what,  to  my  mind, 
those  three  noble  and  learned  Lords  express  to  be  the  law.  It  is 
lawful  for  one  man  to  withdraw  his  work,  or  for  any  number  of  men 
to  withdraw  their  work,  and  to  allege  as  the  reason  for  the  with- 
drawal that  they  refuse  to  work  while  a  certain  man  or  class  of  men 
is  employed  by  those  employers,  and  it  would  be  an  extraordinary 
conclusion  that  although  it  is  lawful  for  them  to  withdraw  tin-ir 
work  it  is  unlawful  for  them  to  intimate  to  their  employers  their 
intention  of  doing  so;  if  that  is  the  law  then  it  amounts  to  this,  that 
what  is  now  commonly  called  a  lightning  strike  would  be  legal,  where- 
as a  strike  taking  place  after  notice  would  Ix^  illegal.   .  .  . 

That  what  was  done  in  this  case  was  done  quietly  and  jx^aceably 
there  can  be  no  doubt  at  all.  The  evidence  is  quite  clear  that  the 
men  had  no  personal  grudge  whatever  against  the  plaintiff,  and  that 
all  that  they  were  anxious  for  was  that  he  shouUl  join  the  Curriers' 
Union.  So  far  as  they  were  concerned  it  did  not  matter  to  them 
whether  he  also  remained  a  memlier  of  the  ^^'orkers'  Union;  but  the 
Curriers'  Union  did  ol)j(>ct  to  his  remaining  a  member  of  the  Workers' 
Union.  Incidentally  he  could  only  join  the  Curriei-s'  Union  by  giving 
up  his  membership  of  the  Workers'  Union;  but  the  object  of  the 
men  was  to  obtain  his  accession  to  the  Curriers"  Union. 

With  reference  to  this  part  of  the  case  the  learnetl  judge  has  found 
as  a  fact  that  the  defendants  were  guilty,  first,  of  conspiring  l)y  threats 
to  injure  the  plaintiff  by  obtaining  his  tlismissal  from  his  employ- 
ment, because  he  would  not  leave  his  own  union  and  join  the  Curriers' 


330  LEGALITY   OF   ENDS   PURSUED  [CHAP.  V 

Union.  In  my  opinion  that  finding  is  not  capable  of  being  sustained 
on  the  evidence.  They  did  not,  in  my  judgment,  conspire  by  any 
threat  at  all  to  injure  the  plaintiff.  They  did  not  conspire  by  any 
threat  to  obtain  his  dismissal  from  his  employment:  What  they  did 
seek  to  do  was  to  secure  that  if  he  remained  in  the  emplojTnent  he 
should  become  a  member  of  the  Curriers'  Union.  What  they  did 
they  did  b}'  means  which,  in  my  opinion,  were  perfectly  lawful. 

The  second  finding  of  fact  by  the  learned  judge  is,  that  they  were 
guilty  of  inducing  and  intentionally  obtaining  severally  and  in  com- 
bination a  direct  breach  by  the  employers  of  the  plaintiff's  agree- 
ment for  service.  That  again,  if  possible,  is  even  less  to  be  supported 
on  the  evidence  than  the  previous  finding. 

What  happened  was  this.  It  was  not  proved  what  were  the  terms 
of  the  employment  so  far  as  concerns  the  right  of  the  emploj^ers  to 
terminate  it;  but  it  seems  to  have  been  assumed  on  both  sides  that 
the  employers  had  the  right  to  determine  it  either  by  giving  a  week's 
notice  or  in  the  alternative  paying  a  week's  wages,  and  when  it  was 
intimated  to  the  men  that  the  employers  might  have  to  pay  the 
week's  wages  in  lieu  of  notice  and  so  avoiding  a  breach  of  contract, 
the  men  in  effect  said  to  the  employers:  "We  will  pay  the  wages; 
if  you  pay  them  you  may  deduct  them  from  our  wages  in  the  follow- 
ing week."  It  is  true  that  the  employers  for  some  reason  best  known 
to  themselves  and  which  was  not  explained  to  us,  did  not  subse- 
quently csLTry  that  proposal  into  effect.  They  did  not  pay  the  week's 
wages  to  the  plaintiff.  But  that  was  no  fault  of  the  men.  The  men 
intended  that  the  contract  which  they  believed  to  be  the  true  con- 
tract should  be  carried  out  bj^  the  emplo3^ers  and  that  they  should 
terminate  the  plaintiff's  service  in  the  way  in  which  he  was  in  their 
view,  and  apparently  in  the  view  of  all  the  parties  concerned,  entitled 
to  have  it  terminated  —  namely,  by  payment  to  him  of  a  week's 
wages  in  lieu  of  notice.  The  answer  therefore  to  that  claim  is  that 
the  defendants  did  not  knowingly  and  intentionally  endeavour  to 
induce  or  succeed  in  inducing  the  employers  to  commit  a  breach  of 
that  contract.  What  they  intended  was  to  avoid  a  breach  of  con- 
tract. .  .  . 

It  is  really  unnecessary  to  consider  the  question  of  the  construc- 
tion and  effect  of  the  Trade  Disputes  Act,  1906;  but  as  it  has 
been  a  good  deal  discussed  and  as  we  have  also  had  discussed  before 
us  the  two  cases  of  Valentine  ?'.  Hyde,  [1919]  2  Ch.  129,  and  Hodges 
V.  Webb,  [1920]  2  Ch.  70,  I  think  that  I  ought  to  say  a  few  words 
about  it.  The  discussion  has  really  turned  upon  sec.  5,  the  definition 
section  as  to  what  is  a  trade  dispute,  and  I  do  not  therefore  propose 
to  discuss  the  two  enacting  sections.  [His  Lordship  read  sec.  5,  sub- 
sec.  3,  and  continued:]  What  is  a  dispute  l)etween  employer  and 
workmen  or  between  workmen  and  workmen  which  is  connected 
with  the  employment  or  non-employment  of  any  person?  In  my 
judgment  that  is  a  question  of  fact  in  every  case.     In  the  present 


SECT.  V]      AGREEMENTS   FOR   UNIONIZATION   OF   SHOPS  331 

case  there  was,  I  tliiiik,  (juite  plainly  a  dispute  lx?tween  workiaen  ami 
worknieu  and  it  was  a  dispute  as  to  whether  or  not  the  |)laintiff 
should,  ill  the  pijsitioii  in  which  he  then  sto(jd  in  relation  lo  the  uni(jns, 
be  eniployeei  by  the  particuhir  employers.  In  my  opinion  that  was  a 
dispute  connected  with  the  employment  or  non-em|)lovnient  of  the 
plaintiff.  It  was  also  a  dispute  connected  with  the  employment  or 
non-employment  of  the  other  workmen  liecause  they  were  unwilling 
to  continue  in  the  employment  if  the  plaintiff  was  also  in  that  <Mn- 
ploynu^nt.  On  this  i)oint,  I  wish  to  .say  U>r  myself  that  1  caniKjt 
appreciate  the  reasoninj;  (jf  Astbury, .).,  in  \'alentine  v.  Hyde,  [19191 
2  Ch.  129.  He  treats  the  matter  as  if  the  dispute  was  whether  or 
not  the  workman  in  cjuestion  should  join  the  particular  union.  In 
my  judgment  that  is  only  an  incident  in  the  dispute.  The  dispute 
is  whether  while  lie  is  not  a  member  of  tlu;  union  to  which  the  other 
men  belong  he  should  be  employed  by  the  employers.  It  is  really  a 
dispute  as  to  the  terms  upon  which  he  sliould  continue  in  the  employ- 
ment. On  this  point  I  very  nuich  prefer  the  reasoning  of  Peterson,  .1., 
in  Hodges  v.  Webb,  [1920]  2  Ch.  70,  to  the  rea.soning  of  Astbury,  .)., 
in  Valentine  v.  Hyde  and  in  the  present  case. 

The  result,  in  my  opinion,  is  that  the  illegal  acts  charged  against 
the  defendants  in  the  present  case  have  not  been  established,  that  tlie 
action  fails  and  that  the  judgment  pnjnounced  for  the  plaintiff  nmst 
be  set  aside  and  judgment  entered  for  the  defendants  with  costs  here 
and  below.  .  .  . 

Section  5.     Trade  Agreements  for  Unionizatian  of  Shops 

CURRAN  V.  GALEN 

Court  of  Appeals  of  New  York.     1897 

152  A^.  Y.  33 

Appeal  from  a  judgment  of  the  General  Term  of  the  Supreme 
Court  in  the  fifth  judicial  department,  entered  April  14,  1894,  which 
afRnned  an  interlocutory  judgment  in  favor  of  plaintiff  entered 
upon  a  decision  of  the  court  at  SjX'cial  Term  sustaining  a  demurrer 
to  the  answer. 

The  plaintiff  demands  damages  against  the  defendants  for  having 
confederated  and  conspired  together  to  injure  him,  by  taking  away 
his  m(>ans  of  earning  a  livelihood  and  prev(>nting  him  from  obtain- 
ing employment.  He  sets  out  in  his  complaint  that  he  was  an  en- 
gineer by  trade,  and  that,  previously  to  fhe  acts  mentioned,  he  was 
earning,  by  reason  of  his  trade,  a  large  income,  and  had  constant 
employment  at  remunerative  wages.  He  .sets  forth  th(>  exi.stence  of 
an  unincorporated  a.ssociation  in  the  city  of  Rochester,  where  he 
was  a  resident,  called  the  Brewery  Workingmen's  Local  .\ssemi)ly, 
1796,  Knights  of  Labor;  which  was  composed  of  workingmen  em- 
ployed in  the  brewing  business  in  that  city  and  was  a  branch  of  a 


332  LEGALITY   OF   ENDS   PURSUED  [CHAP.  V 

national  organization  known  as  the  Knights  of  Labor.  He  alleges 
that  it  assumed  to  control  by  its  rules  and  regulations  the  acts  of  its 
members  in  relation  to  that  trade  and  employment,  and  demands 
and  obtains  from  its  members  implicit  obedience  in  relation  thereto. 
Plaintiff  then  alleges  in  his  complaint  that  the  defendants  Gross- 
berger  and  Watts  wrongful^  and  maliciously  conspired  and  com- 
bined together,  and  with  the  said  local  assembly,  for  the  purpose  of 
injuring  him  and  taking  away  his  means  of  earning  a  livelihood,  in 
the  following  manner,  to  wit:  That  in  the  month  of  November, 
1890,  Grossberger  and  Watts  threatened  the  plaintiff  that,  unless 
he  would  join  said  local  assembly,  pay  the  initiation  fee  and  subject 
himself  to  its  rules  and  regulations,  they  and  that  association  would 
obtain  plaintiff's  discharge  from  the  employment  in  which  he  then 
was  and  would  make  it  impossible  for  him  to  obtain  any  employ- 
ment in  the  city  of  Rochester,  or  elsewhere,  unless  he  became  a 
member  of  said  association.  In  pursuance  of  that  conspiracy,  upon 
plaintiff's  refusing  to  become  a  member  of  said  association,  Gross- 
berger and  Watts  and  the  association  made  complaint  to  the  plaintiff's 
employers  and  forced  them  to  discharge  him  from  their  employ,  and, 
by  false  and  malicious  reports  in  regard  to  him,  sought  to  bring  him 
into  ill-repute  with  members  of  his  trade  and  emploj-ers  and  to  pre- 
vent him  from  prosecuting  his  trade  and  earning  a  livelihood.  The 
answer,  in  the  first  place,  admitted  all  that  was  alleged  in  respect  to 
the  organization  of  the  local  assembly,  as  to  how  it  was  composed 
and  as  to  its  being  a  branch  of  the  national  organization  of  the 
Knights  of  Labor,  and  as  to  its  assuming  to  control  the  acts  of  its 
members  and  to  demand  from  them .  implicit  obedience.  It  then 
denies,  generally  and  specifically,  each  and  every  other  allegation  in 
the  complaint.  As  a  second  and  separate  answer  and  defense  to  the 
complaint,  the  defendants  set  up  the  existence  in  the  city  of  Roches- 
ter of  the  Ale  Brewers'  Association  and  an  agreement  between  that 
association  and  the  local  assembly  described  in  the  complaint,  to 
the  effect  that  all  employees  of  the  brewery  companies  belonging 
to  the  Ale  Brewers'  Association  "shall  be  members  of  the  Brewery 
Workingmen's  Local  Assembly,  1796,  Knights  of  Labor,  and  that 
no  employee  should  work  for  a  longer  period  than  four  weeks  with- 
out becoming  a  member."  They  alleged  that  the  plaintiff  was  re- 
tained in  the  employment  of  the  Miller  Brewing  Co.  "for  more  than 
four  weeks  after  he  was  notified  of  the  provisions  of  said  agreement, 
requiring  him  to  become  a  member  of  the  local  assembly";  that 
defendants  requested  plaintiff  to  become  a  member  and,  upon  his 
refusal  to  comply,  "Grosslierger  and  Watts,  as  meml)ers  of  said 
assembly,  and  as  a  committ(^e  duly  appointed  for  that  purpose, 
notified  the  officers  of  the  Miller  Brewing  Co.  that  plaintiff,  after 
repeated  recpiests,  had  refused  for  more  than  four  weeks  to  become 
a  member  of  said  assembly,"  and  that  "defendants  did  so  solely  in 
pursuance  of  said  agreement,  and  in  accordance   with   the  terms 


SECT.  V]      AGREEMENTS    FOR    UNIONIZATION    OF   SHOPS  833 

thereof,  and  without  intent  or  purpose  to  injure  plaintiff  in  any 
way/'  The  plaintiff  deinurred  to  the  matter  set  up  as  a  separate 
defense  to  the  (•orni)laint,  upon  the  Kroiind  that  it  was  insuffieir-nt, 
in  law,  upon  the  face  thereof.  The  Special  Term  an<l  <  )eneral  Term 
have  sustained  tin*  demurrer,  and  tlu?  (juestion  is  whethr-r  this  mat- 
ter, set  up  by  way  of  special  defense,  is  sufHcient  to  <'Xonerate  the 
defendants  from  the  charge,  made  in  the  complaint,  of  a  conspiracy 
to  injure  the  plaintiff  and  to  deprive  him  of  the  means  of  earnin>^ 
his  livelihood. 

Pku  ('liu.\.m.  In  the  decision  of  the  (juestion  Iwfore  us  we  have 
to  consider  whether  the  aj^reement  upon  which  the  def<'ndants  n-ly 
in  defen.se  of  this  action,  and  to  justify  their  part  in  the  dismi.s.sal  of 
the  plaintiff  from  his  employment,  was  one  which  the  hiw  will  re- 
gard with  favor  and  upiiold,  when  compliance  with  its  requirements 
is  made  a  test  of  the  iii(li\  idiial's  right  txj  be  emi)loved.  If  such  an 
agreement  is  lawful,  then  il  must  be  conceded  that  the  defendants 
are  entitled  to  .set  it  up  as  a  defense  to  the  action;  forasmuch  as 
they  allege  that  what  they  did  was  in  accordance  with  its  t^'rms. 

In  the  general  consideration  of  the  sui)ject,  it  must  be  premised 
that  the  organization,  or  the  cooperation,  of  workingmen  is  not 
against  any  public  policy.  Indeed,  it  must  Ix'  regarded  as  having 
the  sanction  of  law,  when  it  is  for  such  legitimate  purposes  as  that  of 
obtaining  an  advance  in  the  rate  of  wages  or  compensation,  or  of 
maintaining  such  rate.  (Penal  Code,  .sec.  170.)  It  is  projx^r  and 
praiseworthy,  and,  perhaps,  falls  within  that  general  view  of  human 
society,  which  perceives  an  underlying  law  that  men  shoukl  unite 
to  achieve  that  which  each  by  himself  cannot  achieve;  or  can  achieve 
less  readily.  But  the  .social  principle  which  justifies  such  organiza- 
tions is  departed  from,  when  they  are  so  extended  in  their  ojK'ration 
as  either  to  intend,  or  to  accomplish,  injury  to  others.  Public  policy 
and  the  interests  of  society  favor  the  utmost  freedom  in  the  citizen 
to  pursue  his  lawful  trade  or  calling,  and  if  the  purpose  of  an  or- 
ganization or  combination  of  workingmen  be  to  hamper,  or  to  re- 
strict, that  freedom,  and,  through  contracts  or  arrangements  with 
employers,  to  coerce  other  workingmen  to  become  members  of  the 
organization  and  to  come  under  its  rules  and  conditions,  under  the 
penalty  of  the  lo.ss  of  their  position,  and  of  deprivation  of  employ- 
ment, then  that  purpose  seems  clearly  unlawful  and  militates  against 
the  spirit  of  our  government  and  the  nature  of  our  institutions. 
The  effectuation  of  such  a  purpose  would  conflict  witli  that  principle 
of  public  policy  which  prohibits  monoi)olies  and  exclusive  privileges. 
It  would  tend  to  deprive  the  public  of  the  services  of  men  in  useful 
employments  and  capacities.  It  would,  to  use  the  language  of  Mr. 
Justice  Barrett  in  People  ex  rd.  («ill  v.  Smith  (5  X.  Y.  Cr.  Hep. 
at  \).  ol3),  "impoverish  and  crush  a  citizen  for  no  rea.son  connect^nl 
in  the  slightest  degre(>  with  the  advancement  of  wages,  or  the  main- 
tenance of  the  rate." 


334  LEGALITY   OF   ENDS   PURSUED  [CHAP.  V 

Every  citizen  is  deeply  interested  in  the  strict  maintenance  of  the 
constitutional  right  freely  to  pursue  a  lawful  vocation,  under  con- 
ditions equal  as  to  all,  and  to  enjoy  the  fruits  of  his  labor,  without 
the  imposition  of  any  conditions  not  required  for  the  general  welfare 
of  the  community.  The  candid  mind  should  shrink  from  the  results 
of  the  operation  of  the  principle  contended  for  here;  for  there  would 
certainly  be  a  compulsion,  or  a  fettering,  of  the  individual,  glaringly 
at  variance  with  that  freedom  in  the  pursuit  of  happiness,  which  is 
believed  to  be  guaranteed  to  all  by  the  provisions  of  the  fundamental 
law  of  the  state.  The  sympathies,  or  the  fellow-feeling  which,  as 
a  social  principle,  underlies  the  association  of  workingmen  for  their 
common  benefit,  are  not  consistent  with  a  purpose  to  oppress  the 
individual  who  prefers  by  single  effort  to  gain  his  livelihood.  If 
organization  of  workingmen  is  in  line  with  good  government,  it  is 
because  it  is  intended  as  a  legitimate  instrrmientality  to  promote 
the  common  good  of  its  members.  If  it  militates  against  the  general 
pubhc  interest,  if  its  powers  are  directed  towards  the  repression  of 
individual  freedom,  upon  what  principle  shall  it  be  justified?  .  .  . 

The  organization  of  the  local  assembly  in  question  by  the  working- 
men  in  the  breweries  of  the  city  of  Rochester  may  have  been  per- 
fectly lawful  in  its  general  purposes  and  methods  and  may,  other- 
wise, wield  its  power  and  influence  usefully  and  justly,  for  all  that 
appears.  It  is  not  for  us  to  say,  nor  do  we  intend  to  intimate,  to  the 
contrary;  but  so  far  as  a  purpose  appears  from  the  defense  set  up 
to  the  complaint  that  no  employee  of  a  brewing  company  shall  be 
allowed  to  work  for  a  longer  period  than  four  weeks,  without  be- 
coming a  member  of  the  Workingmen 's  Local  Assembly,  and  that  a 
contract  between  the  local  assembly  and  the  Ale  Brewers'  Associa- 
tion shall  be  availed  of  to  compel  the  discharge  of  the  independent 
employee,  it  is,  in  effect,  a  threat  to  keep  persons  from  working  at 
the  particular  trade  and  to  procure  their  dismissal  from  employ- 
ment. While  it  may  be  true,  as  argued,  that  the  contract  was  en- 
tered into,  on  the  part  of  the  Ale  Brewers'  Association,  with  the 
object  of  avoiding  disputes  and  conflicts  with  the  workingmen's 
organization,  that  feature  and  such  an  intention  cannot  aid  the  de- 
fense, nor  legalize  a  plan  of  compelling  workingmen,  not  in  affiliation 
with  the  organization,  to  join  it,  at  the  peril  of  being  deprived  of 
their  employment  and  of  the  means  of  making  a  livelihood. 

In  our  judgment,  the  defense  pleaded  was  insufficient,  in  law, 
upon  the  face  thereof,  and,  therefore,  the  demurrer  thereto  was 
properly  sustained. 

The  judgment  appealed  from  should  be  affirmed,  with  costs. 

All  concur,  except  IIaight,  J.,  not  sitting. 

Judgment  affirmed. • 

*  See  also,  Berry  v.  Donovan,  188  Mass.  353  (1905);  Connors  i'.  Connolly, 
86  Conn.  ()41  (1913)  (restraint  of  trade).  Compare:  ljehi^;h  Structural  Steel 
Co.  V.  .\tlantir  Snieltinn  I'k  HcfininK  Works,  111  Atl.  (N.  J.)  37();  Baldwin  Lumber 
Co.  V.  Local  No.  Ftm,  109  Atl.  (N.  J.)  147. 


BECT.  V]      AGREEMENTS    FOU   UNIONIZATION   OF   SHOPS  335 

JACOBS  t'.  COHEN 
Court  of  Appeals  of  Xi;\v  York.     1905 
1S3  N.  Y.  207 
Gray,  J.    Tlio  jjlaiiitifT  sues  the  makers  and  the  indurser  [cjf]  a  prom- 
issory not<',  pa3'al)k'  t(j  tlu-  oidcr  of  the  Protective  Coat  'I'ailors'  I'liioii, 
of  which  he  is  the  president,  to  recover  tlie  amount  due  thereon. 
The  answer  of  the  defendants  denied  the  allcKaticjn.s  of  the  comphiint, 
except  as  to  the  makin^^  of  the  note,  and  set  up  a.s  a  distinct  and 
separate    defense  that    it   was  given  "as  coHateral   security  to  the 
plaintiff,  to  be  apphcd  as  Hquidated  damaf^es,  for  violation  by  the 
defendants,   of  any  of  the  covenants  and  conditions  of  a  certain 
contract."     The  i)articular  part  of  the  contract  set  forth  is  as  fol- 
lows:    "That  the  party  of  the  first  part  [meaninji;  the  makers'  firm] 
shall  not  employ  any  help  whatsoever  other  than  those  belonginK 
to,  and  who  are  members  of  the  party  of  the  third  part  [meaning  a 
'  union  '  of  the  firm's  employees],  and   in  good  standing,  and  who 
conform  to  the  rules  and  regulations  of  the  said  party  of  the  third 
part,  and  the  said  party  of  the  first  part  shall  cease  to  employ  any 
one  and  all  those  employees  who  are  not  in  good  standing,  and  who 
do  not  conform  to  and  comj)ly  with  the  rules  and  regulations  of 
said  party  of  the  third  part,  upon  being  notified  to  that  effect  by  its 
duly  credentialed  representatives.     That  the  party  of  the  first  part 
shall  not  engage  any  help  whatsoever,  even  those  who  are  mem- 
bers of  the  party  of  the  third  part,  without  their  first  having  pro- 
duced a  pa.ss-card  duly  executed  and  signed  by  the  authorized  busi- 
ness agent  of  the  party  of  the  third  part;   said  card  to  .siiow  that  the 
bearer  thereof  is  a  member  in  good  standing  of  the  party  of  the  thirtl 
part,  and  that  he  has  complied  with  the  rules  and  regulations  thereof 
in  force  at  that  time."    The  answer  then  alleged  "that  the  said  con- 
tract is  in  restraint  of  trade  and  the  said  contract  has  for  its  purpose 
the  combination  of  employers  and  employees,  whereby  the  freedom 
of  the  citizen,  in  pursuing  his  lawful  trade  and  calling,  is  through 
such   contract,    combination    and   arrangement,    hampered   and    re- 
stricted, and  has  also  for  its  purpose  the  coercing  of  workingmen.  to 
become  members  of  the  said   Employees'   Organization   and   come 
under  its  rules  and  its  conditions,  under  the  penalty  of  the  loss  of 
their  positions  and  of  deprivation  of  employment,  and  that  such 
purposes  are  in  restraint  of  trade,  that   they  hamix^r  and  restrict 
the  freedom  of  a  citizen,  in  pursuing  his  lawful  trade  and  calling  and 
that  they  are  against  public  policy  and  unlawful."    To  this  defen.>^e, 
the  plaintiff  demurred,  for  being  insufficient  in  law.     The  demurrer 
was  sustained  at  the  Special  Term;   but,  upon  appeal  to  the  Ap|K'l- 
late  Division,   in  the  second  d(>partment.  the  judgment   sustaining 
the  demurrer  was  reversed  and  tlu>  demurrer  was  overruled.     Per- 
mission was  given  to  the  defendants  to  appeal  to  this  court  and  the 
following  questions  were  certified  for  our  revii'W,  namely: 


336  LEGALITY   OF   ENDS   PURSUED  [CHAP.  V 

"I.  Is  a  contract  made  by  an  employer  of  labor,  by  which  he 
binds  himself  to  employ  and  to  retain  in  his  employ  only  members 
in  good  standing  of  a  single  labor  union,  consonant  with  public 
policy,  and  enforcible  in  the  com-ts  of  justice  in  this  state? 

"II.  Is  the  'Second'  separate  defense,  contained  in  the  answer 
herein  of  the  defendants,  IMorris  Cohen  and  Louis  Cohen,  insuffi- 
cient upon  the  face  thereof  to  constitute  a  defense?" 

If  we  refer  to  the  prevailing  opinion  of  the  Appellate  Division, 
it  appears  that  the  question  in  this  case  was  there  regarded  as  within 
our  decision  in  Curran  v.  Galen  (152  N.  Y.  33),  and,  hence,  that  the 
contract  was  unlawful  because  contrary  to  public  policy.  In  this 
view,  I  think  the  learned  justices  below  erred.  The  contract  is 
annexed  to,  and  made  part  of,  the  answer  and  is  tripartite,  between 
the  defendants,  Alorris  and  Louis  Cohen,  a  firm  engaged  in  the 
tailoring  business,  their  employees,  represented  by  an  attorney  in 
fact,  and  a  voluntary  association,  formed  by  the  latter  and  called 
the  Protective  Coat  Tailors'  and  Pressers'  Union,  of  which  the  plain- 
tiff is  president.  It  provided  for  the  employment  by  the  Cohens 
of  their  employees,  in  their  various  skilled  capacities,  for  the  term 
of  one  year;  for  a  system  of  work  by  the  week;  for  the  number  of 
hours  of  work  and  for  the  mode  of  payment  of  the  wages  and,  gen- 
erally, for  the  regulation  of  the  relations  between  the  emploj'ers 
and  their  employees,  including  this  particular  agreement  not  to 
employ  others  than  members  of  their  employees'  union.  What- 
ever else  may  be  said  of  it,  this  is  the  case  of  an  agreement  volun- 
tarily made  by  an  employer  with  his  workmen,  which  bound  the 
latter  to  give  their  skilled  services  for  a  certain  period  of  time,  upon 
certain  conditions,  regulating  the  performance  of  the  work  to  be 
done,  and  restricting  the  class  of  workmen,  who  should  be  engaged 
upon  it,  to  such  persons  as  were  in  affiliation  with  an  association, 
organized  by  the  employers'  workmen  with  reference  to  the  carry- 
ing on  of  the  very  work.  It  would  seem  as  though  an  employer 
should  be,  unquestionably,  free  to  enter  into  such  a  contract  with 
his  workmen  for  the  conduct  of  the  business,  without  its  being  deemed 
obnoxious  upon  any  ground  of  public  policy.  If  it  might  operate  to 
prevent  some  persons  from  being  employed  by  the  firm,  or,  possibly, 
from  remaining  in  the  firm's  employment,  that  is  but  an  incidental 
feature.  Its  restrictions  were  not  of  an  oppressive  nature,  operat- 
ing generally  in  the  community  to  prevent  such  craftsmen  from 
obtaining  employment  and  from  earning  their  livelihood.  It  was 
but  a  private  agreement  between  an  employer  and  his  employees, 
concerning  the  conduct  of  the  business  for  a  year  and  securing  to  the 
latter  an  absolute  right  to  limit  the  class  of  their  fellow -workmen 
to  those  persons,  who  should  be  in  affiliation  with  an  organization 
e;itcred  into  with  the  design  of  protecting  their  interests  in  carry- 
ing on  the  work;  as,  indeed,  the  agre(;ment  recites.  Nor  does  the 
answer  aver  that  it  was  intended,  thereby,  to  injure  other  work- 


SECT.  V]      AGREEMENTS    FOR    IMONIZATION    OF   SHOPS  337 

men;  or  that  it  was  made  witli  a  malicious  motive  to  coerce  any  to 
their  injury,  through  their  threatened  deprivation  of  all  op[X)rtunity 
of  pursuing  their  lawful  avocation.  To  coerce  workmen  to  Ix^conie 
nienibers  of  tlie  cniijioyces'  organization,  througli  such  a  contract, 
is  not  the  allegation  of  something,  wliieh  the  law  will,  necessarily, 
regard  as  contravening  public  policy.  The  allegation  that  its  "pur- 
poses are  in  restraint  of  trade,"  or  that  "they  hamiXT  and  restrict 
the  freedom  of  a  citiz<'n,"  or  "that  they  are  against  public  policy," 
is  the  mere  statement  of  a  legal  conclusion. 

If  the  (}uestion  were  more  correctly  presented  by  some  appro- 
priate allegation,  I,  still,  would  be  of  the  opinion  that  the  agree- 
ment is  not  one  which  comes  under  the  condemnation  of  the  law. 
The  right  of  workingmen  to  unite  and  to  organize  for  the  pr(jt<'C- 
tion  of  their  interests  and  welfare  is  not  denied.  It  ha^;  Ix'cn,  ex- 
pressly and  recently,  declared  by  this  court.  (Curran  v.  Clalen,  152 
N.  Y.  33;  National  Protective  Association  v.  Cumming,  170  lb.  315, 
at  pp.  320,  334,  338.)  The  inviolability  of  the  right  of  fx-rsons  to 
hvi'dom  of  action  may  well  extend  to  any  concert  of  action  for  legit- 
imate ends,  if  consistent  with  the  maintenance  of  law  and  order  in 
the  community  and  if  not  interfering  with  the  enjoyment  and  the 
exercise  by  others  of  their  constitutional  rights.  Their  right  to 
combine  and  to  cociix'rate  for  the  promotion  of  sucii  ends  as  the 
increase  of  wages,  the  curtailment  of  hours  of  lai)or,  the  regulation 
of  their  relations  with  their  employer,  or  for  the  redress  of  a  griev- 
ance, is  justifiable.  Their  combination  is  lawful,  when  it  does  not 
extend  so  far  as  to  inflict  injury  upon  others,  or  to  oj)press  and  crush 
them  by  excluding  them  from  all  employment,  unless  gained  through 
joining  the  labor  organization,  or  trades  union.  This  we  have  decided 
and  this  the  law  of  the  state  sanctions.  (Curran  v.  Galen,  supra; 
National  Protective  As.sociation  v.  Cumming,  supra;  Penal  Code, 
.sec.  170.)  As  it  was  observed  in  Curran  v.  Galen,  an  underlying 
law  of  human  society  moves  men  to  unite  for  the  better  achieve- 
ment of  a  common  aim  and  this  social  principle  justifies  organized 
action.  Organization,  or  combination,  is  a  law  of  human  society. 
It  is  open  to  all  orders  of  men,  who  desire  to  accomplish  .some  law- 
ful purpose  through  the  greater  strength  and  cfTectiveness,  which 
organization  offers  over  individual  effort.  If  surrender  of  individ- 
ual liberty  is  involved  in  combination,  that  is,  nevertheless,  but  an 
extension  of  the  right  of  freedom  of  action.  .  .  . 

The  case  of  Curren  v.  Galen  (supra),  which  stands  unaffected 
as  an  authority,  presented  a  very  different  state  of  facts.  ...  1 
endeavored  to  point  out  in  the  opinion  that  the  agreement  couKl 
\^o  no  justification  for  the  acts  charged  in  the  complaint  and  that 
it  could  not  legaliz(>  a  plan  for  comix>lling  other  working!n(>n  to  join 
the  defendants'  organization,  at  the  |K'ril  of  being  (lepriv(>(l  of  (>m- 
ployment  and  of  making  a  livelihood.  However  lawful  and  legit- 
imate the  pm'poses  of  the  organization  of  the  workingmen  may  have 


338  LEGALITY    OF   ENDS    PURSUED  [CHAP.  V 

been,  its  power  and  influence  were  being  unlawfully  wielded  in  efforts 
to  keep  other  persons  from  working  at  the  particular  trade  and  to 
procure  their  dismissal  from  employment.  In  the  general  discussion 
of  the  question,  I  conceded  the  general  right  of  workingmen  to 
organize  for  the  common  good  of  the  members  and  sought  to  show 
how  the  agreement  and  acts,  there  in  question,  were  contrary  to 
public  policy  and  unlawful,  because  oppressive  and  restricting  the 
freedom  of  others  to  engage  in  the  same  line  of  occupation,  or  to 
make  a  livelihood  at  their  trade,  as  a  penalty  for  refusing  to  join 
the  defendants'  organization.  That  was  a  verj'-  different  case  from 
the  present  one.  The  subsequent  case  of  National  Protective  Asso- 
ciation y.  Gumming  (supra),  in  no  wise  oveiruled  Curran  v.  Galen. 
It  was  not  at  all  within  the  principle  of  the  prior  case.  It  concerned 
a  dispute  between  rival  labor  organizations.  .  .  . 

This  contract  was  voluntarily  entered  into  by  the  Cohens  and,  if 
it  provided  for  the  performance  of  the  firm's  work  by  those  only  who 
Wfere  accredited  members,  in  good  standing,  of  an  organization  of  a 
class  of  workingmen  whom  they  employed,  were  they  not  free  to  do 
so?  If  they  regarded  it  as  beneficial  for  them  to  do  so  (and  such  is  a 
recital  of  the  contract),  does  it  lie  in  their  mouths,  now,  to  urge  its 
illegality?  That,  incidentally,  it  might  result  in  the  discharge  of 
some  of  those  employed,  for  failure  to  come  into  affiliation  with  their 
fellow-workmen's  organization,  or  that  it  might  prevent  others  from 
being  engaged  upon  the  work,  is  neither  something  of  which  the  em- 
ployers may  complain,  nor  something  with  which  public  policy  is 
concerned. 

I  think  that  the  questions  certified  should  be  answered  in  the 
affirmative  and,  therefore,  that  the  order  of  the  Appellate  Division, 
reversing  the  interlocutory  judgment  and  overruling  the  demurrer, 
should  be  reversed  and  that  the  interlocutory  judgment,  which 
sustained  the  demurrer,  should  be  affirmed,  with  costs  in  all  the 
courts  to  the  appellants.^ 


KISSAM  V.  UNITED  STATES  PRINTING  CO. 

Court  of  Appeals  of  New  York.     1910 

199  N.  Y.  76 

Werner,  J.  In  the  first  of  these  actions  the  plaintiff  is  a  stock- 
holder and  employee  of  the  defendant  United  States  Printing  Co., 
and  in  the  second  the  plaintiffs  are  employees  of  that  corporation, 
but  not  stockholders.  In  all  other  respects  the  actions  are  identical, 
and  they  are  based  upon  voluminous  complaints  which  charge  the 
defendants  with   conspiring  and  confederating  to  compel  the  de- 

'  Vann,  J.,  rendered  a  dissentinR  opinion.  —  Ed. 

Accord:  Mill."  v.  V.  S.  Printing  (Jo.,  99  App.  Div.  (N.  Y.)  (iOS.  See  also,  Natl. 
Fireproof ing  Co.  v.  Mason  Huilders'  Assn.,  1G9  Fed.  259. 


SECT.  V]      AGREEMENTS   FOR   UNIONIZATION   OF   SHOPS  339 

fondant  Unltod  States  PrintinK  Co.  to  enter  into  an  aKreeinent 
with  tlie  several  labor  unions  named  a.s  dcfendant.s  to  the  efTeet 
that  from  and  after  .January  1,  \'M)4,  the  said  printiriK  eom|)any 
would  employ  none  but  members  of  the  several  stc-reotyiwrs  unions 
therein  referred  to,  and  would  discharge  all  employees  in  it«  stereo- 
typei-s'  department  who  should  refuse  to  avail  themselves  of  the 
opportunity  to  become  memiters  of  saitl  unions.  The  various  act.s 
and  proceedings  by  which  this  aKi<'ement  wius  brought  about  are 
set  forth  in  ^reat  detail,  with  appropriate  alleviations  of  their  il- 
legality, and  these  are  supplemented  by  the  lussertion  that  the  agree- 
ment  is  void  because  induced  !)y  coercion.  I'he  compl.-iiiits  are 
further  amplified  by  a!le<:;ations  that  the  agreement,  thus  unlawfully 
entered  into  with  reference  to  the  stereotypers'  department  of  the 
United  vStates  Printing  Co.,  is  to  be  followed  by  similar  aKreernent.s 
designed  to  control  the  action  of  that  corporation  in  the  conduct 
of  all  its  other  departments;  that  the  effect  of  such  action  will  Iw  to 
cau.se  the  disciiarge  of  the  plaintiffs  and  many  others  similarly  sit- 
uated and  to  prevent  them  from  obtaining  employment  elsewhere; 
that  owing  to  the  peculiar  and  far-reaching  methods  employed  by 
the  lal)or  unions  referred  to,  and  the  fact  that  they  are  unincor- 
porated bodies  or  a.ssociations  composed  of  many  hundreds  of  mem- 
bers, the  plaintiffs  have  no  adequate  remedy  at  law,  and  will  have 
no  remedy  at  all  imless  the  agreement  between  the  United  States 
Printing  Co.  and  the.se  unions  is  declared  void,  and  the  defendants 
are  restrained  and  enjoined  from  carrying  out  its  provisions. 

A  preliminary  injunction  was  issued,  the  specific  provisions  of 
which  need  not  be  recited,  and  that  was  subsequently  modified  in 
certain  particulars.  Thus  the  record  stood  when  the  case  was  brought 
to  trial.  Much  evidence  was  introduced  and  some  of  it  bears  most 
cogently  upon  (piestions  which  li(^  at  the  very  foundations  of  the  rela- 
tions between  employer  and  employee,  not  merely  as  individuals 
but  lis  organized  liodies  whose  purpose  it  is  to  induce  or  e.xact  rigiits 
and  privileges  which  mu.st  interfere,  more  or  less,  with  individual 
freedom  of  action.  If  these  questions  were  open  for  consideration 
by  this  court  they  would  be  interesting  and  perplexing,  for  they 
involve  legal  and  sociological  problems  of  the  highest  importance. 
But  they  are  not  open  to  us.  The  unanimous  affirmance  by  the 
Appellate  Division  of  the  judgment  entered  at  Special  T(>rm  limits 
our  investigation  to  the  correctness  of  the  Ictjal  conclusions  upon  the 
facts  found  by  the  trial  court.  We  are  bound  to  a.'^sume  that  the 
facts  found  are  supported  by  the  evidence,  and  if  the  legal  conclu.^ions 
are  sustained  by  the.se  findings  the  judgment  must  be  affirmed. 

The  learned  trial  court  found  that  the  execution  of  the  agreement 
between  the  United  States  Printing  (\).  aruJ  the  sevcMal  labor  imions 
resulted  in  great  financial  benefit  to  the  former,  antl  dispo.scd  of  the 
differences  between  the  parties;  that  the  agreement  wsus  not  en- 
tered into  for  till-  purpose  of  gratifying  malice  .against  the  non-union 


340  LEGALITY   OF   ENDS   PUESUED  [CHAP.  V 

employees  of  the  printing  company  or  of  inflicting  injury  upon  them; 
that  it  was  not  the  object  of  the  defendants  to  compel  the  plaintiffs 
to  join  the  unions;  that  no  pressure,  so  imperative  as  to  amount  to 
compulsion,  was  exerted  upon  the  printing  company  with  regard 
to  the  discharge  of  the  plaintiffs  from  their  employment,  and  that 
there  was  no  conspiracy  to  compel  the  plaintiffs  to  join  the  unions 
or  solely  to  injure  them  in  their  emplo^Tiient. 

Upon  these  findings  of  fact  the  learned  trial  court  based  the  legal 
conclusions  that  the  agreement  was  in  all  respects  lawful;  that  it 
was  not  entered  into  under  duress;  that  no  unlawful  act  has  been 
committed  by  the  defendants,  and  that  the  complaint  should  be  dis- 
missed. These  conclusions  are  in  accordance  with  the  decisions  of 
this  court  arising  out  of  similar  or  analogous  conditions  (National 
Protective  Association  v.  Gumming,  170  N.  Y.  315;  Jacobs  v.  Cohen, 
183  Id.  207;  People  v.  Marcus,  185  Id.  257),  and  the  judgments  in 
both  actions  must,  therefore,  be  affirmed,  with  costs. 

CuLLEN,  Ch.  J.,  Haight,  Willard  Bartlett,  Hiscock  and 
Chase,  JJ.,  concur. 

Judgments  affirmed.^ 

SHINSKY  V.  O'NEIL 

Supreme  Judicial  Court  of  Massachusetts.     1919 

232  Mass.  99 

Bill  in  equity,  filed  in  the  Supreme  Judicial  Court  on  April  5, 
1917,  by  a  laster,  who  had  been  employed  for  many  years  in  shoe 
factories  in  Lynn,  against  the  officers  and  members  of  an  unincor- 
porated association  called  Lasters'  Local  No.  1,  praying  (1)  "That 
the  defendants  be  enjoined  forthwith  from  interfering  or  from  com- 
bining, conspiring  or  attempting  to  interfere  with  the  plaintiff  in 
obtaining  and  holding  employment,  and  from  intimidating  or  threat- 
ening persons  who  might  employ  or  desire  to  employ  the  plaintiff, 
and  from  in  any  way  hindering  the  plaintiff  in  obtaining  or  con- 
tinuing in  employment."  (2)  "That  an  account  be  taken  of  the 
damage  caused  the  plaintiff  by  the  acts"  complained  of,  (3)  for 
costs  and  (4)  for  further-  r(4i(^f.  .   .   . 

LoRiNG,  J.  The  plaintiff  in  this  case  (the  same  person  who  was 
the  plaintiff  in  Shinsky  v.  Tracey,  226  Mass.  21)  is  a  laster  who 
had  been  expelled  from  the  association  known  as  the  United  Shoe 
Workers  of  America  and  from  the  local  union  of  that  association  in 
the  city  of  Lynn.  Aft(M-  the  decision  in  Shinsky  v.  Tracey,  he  ap- 
plied on  February  1,  1917,  to  the  Adams  Shoe  Co.  for  employment 
as  a  laster.  One  Benson,  who  had  authority  to  hire  and  discharge 
men  for  that  company,  refused  to  employ  him,  "f(M^ling  bound  to 
comply  with  the  peace  pact  and  fearing  tliat  theiv  would  l)e  a  strike 

^  Compare:  Broscia  Construction  Co.  v.  Stone  Masons'  Contractors'  Assn., 
187  N.  Y.  Supp.  77. 


SECT.  V]      AGREEMENTS    FOR   UNIONIZATION   OF  ShOPS  341 

if  ho  oniployod  tho  plaintiff  .  .  .  unless  he  [tho  plaintiff]  had  a  per- 
mit from  the  iini(Mi.  Tho  plaintiff,  focliriK  that  ho  could  not  ^ot 
such  a  [Xirniit,  wont  away."  In  March,  1917,  the  jjlaintiff  api)lio<l 
to  A.  Fishor  and  S(mi  for  oinployniont  its  a  la.stcr.  One  Daley  had 
authority  to  hire  and  discharKC  men  for  this  firm.  Tiio  ma.ster 
made  the  same  findinj;  with  respect  to  Daley  that  he  made  with 
rospoot  to  Benson.  On  AjjHI  2,  1917,  the  plaintiff  ai)plie(l  to  tho 
Johnson  and  \\'ritj;ht  Shoe  Co.  for  omploymont  as  a  hister.  Hed- 
lund  had  authority  to  hire  and  discharj^o  men  for  this  comjiany. 
Hodlund  at  fii-st  ornployod  tho  plaintiff,  hut,  on  finding  out  wlio  ho 
was,  discharfjed  him.  The  master  found  that,  "in  discharging  tho 
plaintiff  [lledliind]  w:us  actuate(l  hy  a  desire  to  carry  out  the  real 
wishes  of  Fish  and  the  union  and  thus  avoi<l  trouble  with  tho  union." 
Fish  wJis  the  husin(\ss  agent  of  tho  local  union  of  tho  I'nited  Slux; 
Workers  of  America.  Hodlund  had  conferred  with  him  as  to  tho 
action  he  had  bettor  take  on  tho  plaintiff's  ai)plication  for  work. 
Tho  Adams  Shoe  ('o.,  A.  Fisher  and  Son  and  the  .lolmson  and  Wright 
Shoe  Co.  were  shoe  manufacturers  in  Lynn.  Ivich  of  tho  first  two 
had  a  peace  pact  agreement  with  tho  United  Shoe  Workers  of  America, 
and  the  other  had  a  price  list  agroomont  with  them.  Tho  jM-aco 
pact  agreement  provided  that  no  iXM'.son  should  be  employed  "other 
than  members  in  good  standing  of  the  United  Shoe  Workers  of 
America  so  long  as  the  Local  Union  .  .  .  are  able  to  furnish  help 
to  do  said  work."  The  price  list  agreement  provided  that  all  the 
work  should  "be  given  to  members  in  good  standing  with  Lastors' 
Local  No.  1,  Unit<Ml  Shoo  Workers  of  America." 

The  case  came  before  the  Sujjorior  Court  on  the  report  of  a  ma.ster, 
to  which  no  exceptions  were  taken.  A  decree  was  entered  in  the 
Superior  Court  dismissing  tlio  bill,  and  the  case  is  here  on  an  apix^al 
from  that  decree.   .  .  . 

The  plaintitT  has  not  undertaken  to  question  the  validity  of  a 
peace  pact  agreement  between  an  employer  and  a  labor  union.  Tho 
validity  of  such  an  agreement  was  established  by  the  decision  of 
this  court  in  Hoban  v.  Dompsoy,  217  Mass.  166.  Xor  has  tho  plain- 
tiff vmdortaken  to  argue  against  the  validity  of  a  clau.so  in  an  agnv- 
ment  between  an  employer  of  labor  and  a  labor  union  which  provides 
that  all  work  shall  be  given  by  the  employer  to  the. union.  The  valid- 
ity of  such  an  agreement  is  a  necessary  corollary'  of  the  decision 
mad(^  in  Pickett  /•.  Walsh,  102  Mass.  r>72. 

What  the  plaintiff  has  contended  is  that  tiiis  case  is  taken  out 
of  these  decisions  by  the  particular  findings  made  by  the  master. 

He  relies  in  tho  first  place  on  what  was  found  by  the  master  with 
respect  to  tho  general  policy  of  the  Unit(Ml  Siioo  Workers  of  America. 
The  master  begins  his  report  by  stating  what  tho  general  policy 
of  the  United  Shoo  Workers  of  America  is.  Ho  fouml  in  the  first 
place  that  "The  United  Sho(»  Workers  of  America  .  .  .  seek  as  a 
part  of  their  general  policy  to  secure  all  the  work  possible  for  their 


342  •    LEGALITY   OF   ENDS   PURSUED  [CHAP.  V 

members,  rather  than  to  have  it  go  to  unaffiliated  workers,  and  to 
obtain  the  highest  prices  possible  for  their  work."  After  stating 
that  this  is  "a  part  of  their  general  policy"  he  goes  on  with  this 
finding:  "A  part  of  the  policy  of  the  union  is  to  secure  and  increase 
in  number  what  are  sometimes  called  '  closed  shops,'  that  is,  shops 
where  union  members  and  no  others  are  employed,  and  one  of  the 
purposes  of  this  policy  is  to  enlarge  and  strengthen  the  union  or- 
ganization." The  plaintiff's  contention  on  these  findings  is  that 
the  master  has  found  that  a  part  of  the  general  policy  of  the  union 
is  legal  and  a  part  illegal;  that  it  follows  from  this  that  the  policy 
as  a  whole  is  illegal  and  for  that  reason  this  case  is  taken  out  of  Hoban 
V.  Dempsey  and  the  doctrine  of  Pickett  v.  Walsh. 

We  are  not  able  to  accede  to  this  contention  of  the  plaintiff.  It 
is  established  that  workmen  can  combine  to  get  the  advantage  of 
bargaining  for  their  common  benefit  in  respect  to  the  terms  and 
conditions  upon  and  under  which  they  should  work.  It  is  further 
established  that,  if  they  are  successful  in  getting  the  bargain  they 
wish,  they  can  insert  in  the  agreement  setting  forth  that  bargain  a 
clause  providing  that  all  work  of  the  employer  shall  be  given  to 
them  or  that  a  preference  shall  be  given  to  them  in  the  employment 
of  workmen.  So  much  is  established.  Workmen  cannot  hope  to 
succeed  in  securing  the  advantages  of  bargaining  for  the  common 
benefit  unless  their  combination,  their  organization,  their  union 
(call  it  what  you  please)  is  a  large  and  a  strong  one.  If  any  member 
of  the  combination  or  union  were  to  testify  that  he  did  not  wish  "to 
enlarge  and  strengthen  the  union  organization,"  no  one  would  be- 
lieve him.  No  one  would  believe  that  a  member  of  a  labor  union 
organized  to  secure  the  advantages  of  bargaining  for  the  common 
benefit  could  hope  to  succeed  unless  all  the  members  of  the  union 
did  their  best  "to  enlarge  and  strengthen  the  union  organization." 
So  far  as  this  finding  of  the  master  is  concerned  we  are  of  opinion 
that  the  policy  of  the  United  Shoe  Workers  of  America  "to  enlarge 
and  strengthen  the  union  organization"  is  an  incident  and  a  neces- 
sary incident  to  a  successful  combination  to  secure  the  advantages 
of  bargaining  for  the  common  benefit.  What  we  have  said  with 
respect  to  this  finding  of  the  master  is  also  true  of  the  other  finding 
relied  upon  })y  the  plaintiff,  namely,  "a  part  of  the  policy  of  the 
union  is  to  secure  and  increase  in  number  what  are  sometimes  called 
'  closed  shops.'  "  We  understand  by  this  that  the  master  means 
that  it  is  a  pai-t  of  the  policy  of  the  United  Shoe  Workers  of  America 
"to  secure  and  increase  in  number"  shops  where  the  employer 
agrees  to  give  all  the  work  to  members  of  the  union,  or  at  any  rate 
to  make  a  preference  in  their  favor  in  employing  workmen. 

The  purposes  of  the  action  in  question  in  Plant  v.  Woods,  176 
Mass.  402,  and  in  Berry  v.  Donovan,  ISS  Mass.  353,  are  quite  dif- 
ferent from  the  purposes  which  are  found  by  the  mast(M-  to  have 
been  included  in  the  general  policy  of  the  United  Shoe  Workers  of 


SECT.  V]      AGREEMENTS   FOR   UNIONIZATION   OF   SHOPS  343 

America  set  forth  above.  In  botti  Plant  r.  Woods  and  in  Berry  v. 
Donovan  the  action  taken  was  tiiicen  to  force  in  the  one  ease  a  num- 
ber of  workmen  and  in  the  otlier  a  single  workinan  to  join  a  partic- 
ular union.  That  was  the  sole  purjjose  of  the  action  taken  in  those 
cases.  The  d(!cisions  in  those  cases  an;  not  decisive  of  the  eajse  at 
bar  where  there  is  a  general  i)olicy  to  .secure  the  advantages  of  bar- 
gaining for  the  common  Ix'iiefit  or,  as  the  ma.ster  puts  it,  "to  secure 
all  the  work  possil^le  for  their  memljers,  rather  than  to  have  it  go  to 
unaffiliat(Hl  workers,  and  to  obtain  the  highest  prices  possible  for 
th(Mr  work,"  and  when;  iis  an  incident  to  that  general  jjolicy  it  is 
fiiund  by  the  master  that  it  Wiis  the  purjM^se  of  the  uni(jn  "to  secure 
and  increjuse  in  number  what  are  sometimes  called  '  clo.sed  .shops  ' 
.  .  .  and  ...  to  enlarge  and  strengthen  the  union  organization." 
By  the  true  coastruction  of  the  master's  report  it  cannot  l>e  taken 
that  his  statement  of  the  policy  of  tin-  I'liited  Shoe  Workers  of 
America  is  anything  mf)re  than  this. 

The  plaintiff  has  insisted  that  there  is  another  finding  of  the  mas- 
ter which  takes  this  case  out  of  the  decision  in  Hol)an  i'.  Dempsey 
and  the  doctrirK^  of  Pickett  v.  Walsh.  That  finding  is  this:  "It  is 
then  a  part  of  tlie  policy  of  the  union  to  endeavor  to  induce  the  work- 
man to  become  a  member  of  the  union  or  to  make  himself  in  good 
standing  in  it,  and,  failing  that,  to  report  to  the  employer  that  the 
workman  is  not  a  member  of  the  union  in  good  standing.  It  is  not 
the  custom  of  the  union  to  refuse  membership  to  workmen  wishing 
to  join  the  union,  even  though  there  are  members  of  the  union  out 
of  work  who  would  like  employment;  but  of  course  the  admission 
of  new  members  is  optional  with  the  union."  It  is  the  plaintiff's 
contention  that  this  finding  means  "that  the  union  tries  to  induce 
the  workman  to  join  and  admits  him  regardless  of  whether  its  own 
members  are  out  of  work  and  without  employment.  It  is  not  the 
work,  but  the  man  and  the  closed  shop  which  the  union  really  seeks, 
in  order  to  '  enlarge  and  strengthen  the  union  organization.'  "  A 
union  which  has  an  agreement  with  an  employer  providing  (inter 
alia)  that  all  the  work  shall  bo  given  to  members  of  the  union  or 
that  a  preference  shall  be  given  to  members  of  the  union  in  employ- 
ing workmen,  would  open  itself  to  a  serious  criticism  if  it  refused  to 
admit  to  meml)ership  men  cjualified  to  perform  the  work  done  by 
meml>ers  of  the  union  in  question.  By  having  as  a  part  of  its  policy 
"the  custom"  of  not  refusing  membership  to  workmen  who  wished 
to  join,  such  a  union  avoids  subjecting  itself  to  this  criticism.  We 
are  of  opinion  that  the  finding  of  the  master  here  relied  upon  cannot 
be  taken  to  mean  anything  more  than  tin's. 

The  last  finding  of  the  master  which  is  relied  upon  by  the  plain- 
tiff to  take  this  case  out  of  Hoban  v.  Dempsey  and  the  doctrine  of 
Pickett  r.  Walsh,  is  this:  "I  find  that,  as  a  con.sequence  of  the  case 
of  Shinsky  v.  Tracey,  220  Mass.  21,  and  the  proceedings  lea«ling 
up  to  that  suit,   the  defendants,  other  than   Daley  and   Hvdlund, 


344  LEGALITY    OF    ENDS    PURSUED  [CHAP.  V 

and  the  union  generally  were  and  are  in  a  state  of  business  hostility 
to  the  plaintiff."  It  is  plain  from  the  master's  finding  which  follows 
inmiediately  after  this  finding,  that  he  did  not  intend  by  this  find- 
ing to  state  that  the  refusal  to  employ  the  plaintiff  was  based  on 
"hostility  to  the  plaintiff."  Immediately  after  this  finding  the 
master  made  the  following  finding:  "But  I  do  not  find  that,  in  the 
three  incidents  related  in  this  report,  the  defendants  or  the  union 
did  anything  adverse  to  the  plaintiff  that  they  would  not  have  done 
had  the  plaintiff  been  a  non-member  of  the  union  against  whom  no 
such  hostility  existed.  Whether  the  plaintiff  could  have  obtained 
admission  into  the  union,  as  an  ordinarj^  non-member  could,  must 
be  a  matter  of  conjecture,  because  he  made  no  application  for  ad- 
mission." It  is  plain,  therefore,  that  the  master's  finding  went  no 
further  than  a  finding  that  the  union  insisted  upon  an  enforcement 
of  the  clauses  in  their  agreement  with  the  Adams  Shoe  Co.,  and  with 
A.  Fisher  and  Son  which  provided  that  in  employing  the  lasters 
preference  should  be  given  to  members  of  the  union,  and  of  the 
clause  in  their  agreement  with  the  Johnson  and  Wright  Shoe  Co., 
that  all  the  work  in  the  lasters'  department  should  be  given  to  mem- 
bers of  the  Lasters'  Local  No.  1  of  the  United  Shoe  Workers  of 
America. 

For  these  reasons  we  are  of  opinion  that  there  is  nothing  in  the 
master's  report  which  takes  this  case  out  of  the  decision  made  in 
Hoban  v.  Dempsey  and  the  doctrine  of  Pickett  v.  Walsh,  and  that 
apart  from  the  Sherman  anti-trust  act  and  St.  1911,  c.  503  (upon 
which  we  intimate  no  opinion),  the  agreements  between  the  three 
employers  of  lasters  here  in  question  and  the  United  Shoe  Workers 
of  America  were  valid  agreements. 

The  result  is  that  the  decree  appealed  from  must  be  affirmed 
with  costs,  and  it  is  So  ordered} 

Section  6.    Strikes  to  Compel  Payment  of  Fines  Levied 
against  Employer 

CAREW  V.  RUTHERFORD 
Supreme  Judicl^l  Court  of  Massachusetts.     1870 

106  Mass.  1 
Contract  against  Alexander  Rutherford,  Joseph  Wagner,  Edward 
Shea,  William  Cooney,  and  the  "Journeymen  Freestone  Cutters' 

^  The  Ocarlior  case  of  Hoban  v.  Dempsey,  217  Mass.  166  (1914),  held  that  a 
trade  aKrccnicnt  voluntarily  entered  into  between  the  representatives  of  certain 
steamshij)  comijanies  and  a  union  of  lonpshoretnen  in  furtherance  of  the  interests 
of  both,  providinR  that  the  steamship  companies  should  employ  none  but  niem- 
V)ers  of  the  longshoremen's  union  so  long  i\s  such  labor  was  available,  is  a  valid 
agreement,  and  cannot  be  enjoined  by  a  rival  longshoremen's  union.  Compare 
the  still  earlier  case  of  Berry  v.  Donovan,  ISS  Mass.  ;i53  (1905). 

See  also  lleihing  v.  Brotherhood  of  Electrical  Workers,  94  N.  J.  L.  240. 


SECT.  VI]  FINES   AGAINST   EMPLOYER  ."^45 

Association  of  Boston  and  vicinity,  an  unincorporated  association 
composed  of  the  defendants  personally  named  and  other  ponsons 
to  the  plaintiff  unknown,"  to  recover  hack  SoOO  a.s  money  had  and 
received  by  the  defendants  to  the  pluintifT's  use;  with  [anj  alt<'rna- 
tive  count  in  tort.   .   .   . 

At  the  trial  in  the  Sufx^rior  Court,  Ix-fore  Brigham,  C.  J.,  with- 
out a  jury,  the  judge  found  these  facts: 

"The  plaintiff  in  August,  1868,  was  a  freestone  cutter  at  South 
Boston,  and  had  contracted  to  furnish  cut  freestone  for  various 
buildings,  among  whicli  was  the  Roman  Catholic  cathedral  in  lios- 
ton,  in  large  quantity  and  at  a  contract  jjrice  of  S80,0(X).  The  de- 
fendants, and  sixteen  other  persons,  all  journeymen  freestone  cutters, 
and  members  of  an  unincorporated  association  called  the  .Jf)urney- 
men  Freestone  Cutters'  Association  of  Boston,  Charlestown,  Rox- 
bury,  and  their  vicinities  (of  which  association  the  plaintiff  was  not 
a  member),  together  with  eight  or  Um  laborers,  who  were  not  jour- 
neymen stonecutters  or  skilled  laborers,  and  four  apprentices  to  the 
freestone  cutting  trade,  constitutecl  the  stonecutting  force  relied 
upon  by  the  plaintiff  to  fulfil  his  said  freestone  contracts.  .  .  .  On 
the  morning  of  August  18,  1868,  the  defendant  William  Cooney, 
president  of  said  association,  who  was  foreman  in  the  plaintiff's 
establishment,  notified  the  plaintiff  that  on  the  evening  of  the  day 
before,  at  a  special  meeting  f)f  the  a.ssociation,  it  was  voted  that  the 
plaintiff  should  pay  to  the  association  the  sum  of  S500  as  a  penalty 
imposed  upon  him  by  the  association  because  he  had  sent  to  New 
York  to  be  executed  some  of  the  freestone  cutting  to  l)e  done  under 
his  contract  for  the  cathedral;  and  upon  the  plaintiff's  refusal  to 
make  such  payment,  all  the  journeymen  freestone  cutters  employed 
by  him  (among  them,  the  defendants)  left  the  plaintiff's  .service 
in  a  body,  agreeably  to  said  vote  and  the  rules  of  said  association. 
At  his  request,  the  plaintiff  was  permitted  to  appear  at  a  meeting 
of  the  association  and  exi)lain  the  circumstances  which  induced  him 
to  send  a  part  of  the  stone  cutting  work  required  for  the  cathedral 
to  New  York  to  be  executed;  and,  after  explaining  that  his  action 
in  that  matter  was  because  of  his  not  having  the  proper  stock  for 
that  part  of  the  work  when  he  could  procure  journeymen  to  work 
upon  it,  and  when,  having  procured  such  stock,  he  could  not  pro- 
cure a  sufficient  force  of  journeymen  to  work  it,  there  was  a  motion 
made  and  debated  in  the  as.sociation,  that  the  previous  vote,  to  the 
effect  that  jnembers  should  withdraw  from  the  plaintiff's  service 
unless  he  paid  S500  as  aforesaid,  should  be  reconsidered  and  rescinded; 
but  the  association  refused  to  reconsider  or  rescind  the  vote.  At 
this  meeting,  said  vote  was  read  to  the  plaintiff  by  the  secretary 
of  the  association.  On  the  same  night  or  the  next  morning,  the 
defendants  Coon(\v  and  Shea,  and  others,  told  the  plaintiff  that  all 
the  association  men  in  his  shop  wotild  desert  him  at  once  unless  he 
paid  the  S500,  antl  that  the  association  refused  to  rescind  the  vote. 


346  LEGALITY    OF   ENDS    PURSUED  [CHAP.  V 

The  plaintiff  refused  to  pay,  and  all  his  men  left  his  shop  at  once 
and  in  a  body,  under  the  lead  of  Coone}-  and  Shea;  and  the  plain- 
tiff was  without  men  for  a  week  or  ten  days,  and  until  after  he  had 
made  the  paj^nent  of  S500  as  hereinafter  stated.  Previously  to  the 
pajTuent  of  the  money,  and  after  the  men  had  left  him,  Cooney  and 
others  of  the  defendants  told  the  plaintiff  that  neither  these  men, 
nor  any  association  men,  would  be  allowed  to  work  in  his  shop,  if 
he  refused  to  pay  the  money  demanded.  In  consequence  of  the 
withdrawal  of  the  defendants  and  the  other  journejonen,  the  free- 
stone cutting  which  the  plaintiff  had  contracted  to  do  was  stopped, 
because  it  was  impossible  for  the  plaintiff  to  procure  journeymen 
or  other  freestone  cutters,  who  were  not  members  of  said  associa- 
tion, and  who  had  such  skill  as  was  required  for  the  fulfilment  of  his 
contracts.  Several  days  after  the  defendants  and  the  other  jour- 
ne^Tiien  had  withdrawn  from  the  plaintiff's  service,  the  plaintiff, 
induced  b}^  the  necessity  of  doing  so  to  fulfil  said  contracts  and 
continue  his  other  stonecutting  work,  paid  to  the  defendants,  to  the 
use  of  said  association,  the  sum  of  $500,  on  August  26,  1868;  and 
the  defendants  and  other  journeymen,  who  had  withdrawn  as  afore- 
said, returned  to  the  service  and  employment  of  the  plaintiff."  .  .  . 

The  judge  further  found  as  a  fact  "that  the  money  demanded  of 
the  plaintiff  was  demanded  without  right,  and  not  under  any  con- 
tract or  agreement  between  him  and  the  defendants." 

Upon  these  findings  the  judge  ruled  that  the  facts  would  not 
sustain  the  action,  and  ordered  judgment  for  the  defendants.  The 
plaintiff  alleged  exceptions. 

Chapman,  C.  J.  The  declaration  contains  a  count  in  tort,  and 
a  count  for  money  had  and  received.  .  .  . 

One  of  the  aims  of  the  common  law  has  always  been  to  protect 
every  person  against  the  wrongful  acts  of  every  other  person,  whether 
committed  alone  or  in  combination  with  others;  and  it  has  pro- 
vided an  action  for  injuries  done  by  disturbing  a  person  in  the  en- 
J03Tnent  of  any  right  or  privilege  which  he  has.  .  .  .  The  illustra- 
tions given  in  former  times  relate  to  such  methods  of  doing  injury 
to  others  as  were  then  practised,  and  to  the  kinds  of  remedy  then 
existing.  But  as  new  methods  of  doing  injury  to  others  are  in- 
vented in  modern  times,  the  same  principles  must  be  applied  to 
them,  in  order  that  peaceable  citizens  may  be  protected  from  being 
disturbed  in  the  enjoyment  of  their  rights  and  privileges;  and  exist- 
ing forms  of  remedy  must  be  used.  .  .  . 

There  are  many  cases  where  money  has  been  wrongfully  obtained 
by  fraud,  oppression  or  taking  undue  advantage  of  another,  without 
doing  him  any  other  injury.  This,  being  tortious,  would  sustain 
an  action  expressly  alleging  the  tort.  But  an  action  for  monej'  had 
and  received  has  been  maintained  in  many  cases  where  money  has 
been  received  tortiously  without  any  color  of  contract.  1  Chit.  PI. 
(6th  cd.)  352.     This  class  of  cases  is  referred  to,  because  they  dis- 


SECT.  VI]  FINES   AGAINST   EMPLOYER  347 

CUSS  the  (|Uostion  what  constitutes  an  unlawful  obtaining  of  money, 
such  as  will  suhjcct  tin-  party  obtaining  it  to  an  action  for  daina^rcs 

In  Shaw  r.  Woodcock,  7  B.  &  ('.  7'A,  it  is  said  that,  if  a  jvirty  making 
a  payment  is  ohlij^ed  to  pay  tlic  money  in  order  to  obtain  jKJssession 
of  things  to  which  he  is  entith'd,  the  payment  is  not  a  voluntary, 
but  a  compulsory  i)ayment,  and  may  be  recovered  back. 

In  Morgan  r.  Palmer,  \  1).  it  K.  2s:i,  Abbott,  C  J.,  Kiys  that, 
in  order  to  render  a  payment  voluntary  in  the  proper  senst?  of  the 
word,  the  parties  concerned  nmst  stand  upon  eciual  terms;  then? 
must  bo  no  duress  ofx^rating  upon  the  one;  theic  must  Ix-  no  op- 
pn^ssion  or  frau<l  practised  l)y  the  other. 

In  (^adaval  /'.  (yollins,  4  .Vd.  ct  Kl.  rS.')H,  money  was  recovered  back 
which  was  obtained  by  abu.se  of  legal  process. 

In  Wakefield  v.  Nowbon,  0  il.  B.  270,  money  extorted  from  an- 
other by  means  of  the  wrongful  detention  of  his  goods  was  recovered 
back.  .  .  . 

The  cases  in  regard  to  the  recovery  back  of  money  which  has 
been  wrongfully  obtained  are  very  numerous.  Many  of  them  are 
collected  in  the  notes  to  Marriot  v.  Hampton,  2  Smith  I^*ad.  ('as. 
(6th  Am.  ed.)  4.53.  There  is  a  large  class  of  cases  in  which  it  carmot 
be  recovered  i)ack,  like  Marriot  r.  Hampton,  and  like  Benson  r. 
Monroe,  7  Gush.  125.  In  the  latter  case,  the  defendant  had  made 
a  claim  in  good  faith,  under  a  statute  which  he  believed  to  be  valid. 
The  plaintiff  had  preferred  to  settle  and  pay  it,  rather  than  litigate 
the  matter  further.  It  turned  out,  by  the  decision  in  a  subsecpient 
case,  that  if  he  had  carried  the  ca.se  to  the  Supreme  Court  of  the 
United  States  he  woultl  have  prevailed  on  the  ground  that  the  statute 
was  unconstitutional.  But  neither  this,  nor  any  of  the  other  cases, 
gives  any  countenance  to  tiie  idea  that  money  can  be  obtained  by 
fraud  or  oppression,  and  with  knowledge;  that  the  claim  is  unfounded, 
without  exposing  tiie  party  obtaining  it  to  an  action. 

Without  undertaking  to  lay  down  a  precise  rule  applicable  to 
all  cases,  we  think  it  clear  that  the  principle  which  is  established 
by  all  the  authorities  cited  above,  whether  they  are  actions  of  tort 
for  disturbing  a  man  in  the  exerci.se  of  his  rights  ami  privileges,  or 
to  recover  back  money  tortiously  obtained,  extends  to  a  case  like 
the  present.  We  have  no  doubt  that  a  conspiracy  again.st  a  me- 
chanic, who  is  under  the  necessity  of  employing  workmen  in  order 
to  carry  on  his  l)usiness,  to  obtain  a  sum  of  money  from  him.  which 
he  is  under  no  legal  liability  to  pay,  by  inducing  his  workmen  to 
leave  him,  and  by  deterring  others  from  entering  into  his  employ- 
ment, or  by  threat(>ning  to  do  this,  so  that  he  is  induced  to  pay  the 
money  ilemantied,  under  a  reasonal)le  apprehension  that  he  cannot 
carry  on  his  l)usin(>ss  without  yielding  to  the  ill(>gal  demand,  is  an 
illegal,  if  not  a  criminal,  conspiracy;  that  the  acts  done  under  it  are 
illegal;  and  that  the  money  thus  ol^tained  may  lx»  recovered  back, 
and,  if  tht^  parties  succeed  in  injuring  his  busine.«<s,  they  are  lial»lo 


348  LEGALITY    OF    ENDS    PURSUED  [CHAP.  V 

to  pay  all  the  damage  thus  done  to  him.  It  is  a  species  of  annoy- 
ance and  extortion  which  the  common  law  has  never  tolerated. 

This  principle  does  not  interfere  with  the  freedom  of  business, 
but  protects  it.  Every  man  has  a  right  to  determine  what  branch 
of  business  he  will  pursue,  and  to  make  his  own  contracts  with  whom 
he  pleases  and  on  the  best  terms  he  can.  He  may  change  from  one 
occupation  to  another,  and  pursue  as  many  different  occupations 
as  he  pleases,  and  competition  in  business  is  lawful.  He  may  refuse 
to  deal  with  any  man  or  class  of  men.  And  it  is  no  crime  for  any 
number  of  persons,  without  an  unlawful  object  in  view,  to  associate 
themselves  together  and  agree  that  they  will  not  work  for  or  deal 
with  certain  men  or  classes  of  men,  or  work  under  a  certain  price, 
or  without  certain  conditions.  Commonwealth  v.  Hunt,  4  Met. 
Ill,  cited  above.  Boston  Glass  Manufactory  v.  Binney,  4  Pick. 
425.    Bowen  v,  Matheson,  14  Allen,  499. 

This  freedom  of  labor  and  business  has  not  always  existed.  When 
our  ancestors  came  here,  many  branches  of  labor  and  business  were 
hampered  by  legal  restrictions  created  by  English  statutes;  and 
it  was  a  long  time  before  the  community  fully  understood  the  im- 
portance of  freedom  in  this  respect.  Some  of  our  early  legislation 
is  of  this  character.  One  of  the  colonial  acts,  entitled  "An  act  against 
oppression,"  punished  by  fine  and  imprisonment  such  indisposed 
persons  as  may  take  the  liberty  to  oppress  and  wrong  their  neigh- 
bors by  taking  excessive  wages  for  their  work,  or  unreasonable  prices 
for  merchandises  or  other  necessary  commodities  as  may  pass  from 
man  to  man.  Anc.  Chart.  172.  Another  required  artificers,  or 
handicraftmen  meet  to  labor,  to  work  by  the  day  for  their  neighbors, 
in  mowing,  reaping  of  corn  and  the  inning  thereof.  lb.  210.  An- 
other act  regulated  the  price  of  bread.  lb.  752.  Some  of  our  town 
records  show  that,  under  the  power  to  make  by-laws,  the  towns 
fixed  the  prices  of  labor,  provisions  and  several  articles  of  merchan- 
dise, as  late  as  the  time  of  the  Revolutionary  War.  But  experience 
and  increasing  intelligence  led  to  the  abolition  of  all  such  restric- 
tions, and  to  the  establishment  of  freedom  for  all  branches  of  labor 
and  business;  and  all  persons  who  have  been  born  and  educated 
here,  and  are  obUged  to  begin  life  without  property,  know  that 
freedom  to  choose  their  own  occupation  and  to  make  their  own  con- 
tracts not  only  elevates  their  condition,  but  secures  to  skill  and 
industry  and  economy  their  appropriate  advantages. 

Freedom  is  the  policy  of  this  country.  But  freedom  does  not 
imply  a  right  in  one  person,  either  alone  or  in  combination  with 
others,  to  disturb  or  annoy  another,  either  directly  or  indirectly, 
in  his  lawful  l)usiness  or  occupation,  or  to  threaten  him  with  an- 
noyance or  injury,  for  the  sake  of  compelling  him  to  buy  his  peace; 
or,  in  the  language  of  the  statute  cited  above,  "with  intent  to  extort 
money  or  any  pecuniary  advantage  whatever,  or  to  compel  him 
to  do  any  act  against  his  will."    The  acts  alleged  and  proved  in  this 


SECT.  VI]  FINES   AGAINST   EMPLOYER  349 

case  are  peculiarly  offeriHive  to  the  free  principles  which  prevail  in 
this  country;  and  if  such  practices  could  enjoy  impunity,  they 
would  tend  to  establish  a  tyranny  of  irres|X)nsible  persons  over  labor 
and  mechanical  business  wliich  would  be  extremely  injurious  to  Ixjth. 

Exceptions  suatained. 

After  this  decision,  the  case  was  settled  by  the  parties,  without 
another  trial. 


DAY  V.  STUDEBAKER  BROS.  MFG.  CO. 

City  Court  of  New  Youk.     1S95 

13  Misc.  320 

CoNLAN,  J.  This  is  an  appeal  from  a  judgment  entered  on  the 
verdict  of  a  jury,  and  from  an  order  denyiuf^  u  motion  for  a  new 
trial. 

This  action  was  brought  to  recover  l)ack  the  sum  of  siiOO  ciaimeil 
to  have  been  paid  to  the  defendant  under  duress. 

The  evidence  shows  that  about  August,  1S91,  the  defendant 
corporation  was  engaged  in  manufacturing  carriages  in  South  Bend, 
Indiana. 

Tii(?  plaintiff  was  in  its  employ,  with  an  office  in  the  City  of  New 
York. 

About  October  of  that  year  the  plaintiff  went  to  wSouth  Bend, 
where  he  had  a  conversation  with  an  officer  of  the  defendant,  in 
which  it  was  daimetl  that  plaintiff  had  received  S500  which  be- 
longed to  the  defendant;  this  claim  was  resisted  by  the  plaintiff, 
who  claimed  the  money  l)elonged  to  him. 

Plaintiff  also  testified  that  he  was  given  to  understand  that  his 
services  would  not  be  needed  by  the  defendant  unless  he  paid  over 
this  money. 

After  some  further  talk  it  was  agreed  that  .S300  shoultl  l)e  turnetl 
or  paid  over  to  defendant  instead  of  the  .?500  originally  claimed, 
and  which  sum  plaintiff  transferred  to  the  credit  of  the  defendant  on 
his  return  to  New  York. 

Assuming  the  money  to  belong  to  the  plaintiff,  tliis  action  cannot 
be  maintained. 

The  payment  of  the  money  after  his  return  was  purely  a  matter 
of  business  policy  and  lacked  every  essential  element  of  duress. 

The  defendant  was  under  no  oliligation  to  retain  the  services  of 
the  plaintiff,  and  if  plaintiff  saw  fit  to  pay  §300  as  the  price  of  his 
retention  in  the  employ  of  the  defendant  he  is  l)Ound  l\v  his  l>argain. 

It  might  with  equal  force  be  urged  that  if  defendant  had  infonned 
plaintiff  that  unless  he  consentcnl  to  take  less  salary  than  he  was 
getting  then  he  would  Ix^  dischargcMl,  and  plaintiff,  desirous  of  re- 
taining his  place,  consented,  that  he  could  subsequently  recover  his 
original  salary. 


350  LEGALITY'   OF   ENDS    PURSUED  [CHAP.  V 

Such  a  proposition  could  not  be  entertained  for  a  moment. 

The  money  was  transferred  to  defendant  after  plaintiff's  return 
to  New  York,  and  after  ample  opportunity  to  realize  what  he  was 
doing,  and  without  any  fraud  or  deception  on  the  part  of  the  de- 
fendant. 

Where  a  party  threatens  to  do  only  what  he  has  a  legal  right  to 
do  there  can  be  no  duress.  6  Am.  &  Eng.  Ency.  of  Law,  71;  Secor 
V.  Clark,  117  N.  Y.  350;  Barrett  v.  Weber,  125  id.  18-25;  Doyle  v. 
Rector,  etc.,  133  id.  372. 

It  follows  that  the  plaintiff  is  without  relief  and  that  the  defend- 
ant's motion,  made  at  the  close  of  the  plaintiff's  case,  should  have 
been  granted. 

Judgment  reversed  and  a  new  trial  ordered,  with  costs  to  abide  the 
event. 

^'AN  Wyck  and  Newburger,  JJ.,  concur. 

Judgment  reversed  and  new  trial  ordered,  with  costs  to  abide 
event.  ^ 

MARCH  V.  BRICKLAYERS'  UNION 
Supreme  Court  of  Errors  of  Connecticut.     1906 

79  Conn.  7 

Action  to  recover  money  alleged  to  have  been  extorted  from  the 
plaintiff  by  means  of  unlawful  threats,  intimidation  and  coercion, 
brought  to  and  tried  by  the  Court  of  Common  Pleas  in  Hartford 
County,  Coats,  J.;  facts  found  and  judgment  rendered  for  the  plain- 
tiff, and  appeal  by  the  defendants.     No  error. 

The  plaintiff  conducted  a  brick-yard  and  manufactured  and  sold 
brick.  The  defendant  union  was  a  voluntary  association  composed 
of  journeymen  bricklayers  and  plasterers.  The  defendant  Butler 
was  a  member  of  the  union  and  its  financial  secretary  and  business 
agent.  As  business  agent  it  was  made  his  duty,  among  other  things, 
to  see  that  members  of  the  union  did  no  work  in  violation  of  its 
requirements,  and  to  ascertain  and  report  to  the  union  all  brick 
manufacturers  who  furnished  brick  to  any  "boss-mason"  who  was 
proscribed  by  the  union  as  "unfair,"  as  being  the  employer  of  other 
than  union  bricklayers  and  plasterers,  and  generally  to  act  as  the 
agent  of  the  union  in  securing  obedience  to  its  orders  and  compliance 
with  its  demands.  The  plaintiff  was  not  a  member  of  the  union, 
nor  an  employer  of  members  of  it;  neither  was  he  under  any  con- 
tractual or  other  obligation  to  it,  save  such  o])ligation  as  one  owes 
to  other  members  of  society.  The  defendant  union  had  voted  that  its 
members  would  refuse  to  handle  brick  from  any  brickmaker  who 

»  Compare:  People  v.  Schmitz,  94  Pac.  fCal.)  410  (threat  hy  mayor  that  if 
restaurant  keepers  of  eity  would  not  pay  him  pjraft  money  he  would  prevent 
their  oV)taininp;  liquor  lirenses  from  the  police  commissioners);  People  v.  Hughes, 
137  N.  Y.  29;   People  v.  Barondess,  31  N.  E.  (N.  Y.)  240. 


SECT.  VI]  FINES   AGAINST   EMPLOYER  351 

Bhould  furnish  brick  to  "unfair"  bosses.  By  authority  of  the  union, 
notice  of  this  action  had  been  mailed  to  the  plaintiff,  and  to  substan- 
tially all  (jtiicr  biickinakcrs  in  the  vicinity  of  Hartford.  It  had  also 
been  voted  tiiat  the  two  secretaries  picparc  and  cau.se  to  Ix*  printed 
cards  having  thereon  the  names  of  those  "lx)ss -masons"  who  were 
by  the  union  cla.s.sed  as  "fair"  and  those  cla.s.sed  sis  "unfair."  These 
had  been  .so  pre()ared,  accepted  by  the  union  and  distributed.  The 
plaintiff  received  said  notice,  and  one  of  said  cards  was  (h-livcred  to 
him  by  Hutler.  A  few  months  sub.secpiently  the  plaint ilT  sohl  and 
delivered  brick  to  a  " bo.s.s-mason "  who  was  chis.s(.'d  as  "unfair." 
Thereupon  the  union  voted  to  "place  damaf^es  of  $100  against  said 
March  for  violating  aKieemcnt  with  Bricklayers'  Union."  There 
was  no  such  aM;reemerit.  Shortly  afterward  the  plaintiff  sold  and 
began  to  deliver  to  one  Flynn,  a  "fair"  boss-nuuson,  brick  for  the  c<jn- 
struction  of  a  building  upon  whic  li  the  latter  was  doing  the  brick 
work.  After  a  few  loads  had  Ix'cn  so  delivered  the  defendant  Butler, 
acting  for  the  union  in  his  said  capacity  as  business  agent,  visit<'d 
this  building  and  had  a  talk  with  tiie  plaintiff  and  Flynn.  The 
penalty  imposed  upon  the  plaintiff  was  then  discussed,  and  Butler 
then  either  expressly  said  to  the  plaintiff  and  Flynn,  or  intended 
from  what  he  did  say  that  they  should  understand,  and  they  did 
understand,  that  he,  "liutler,  acting  for  the  union  and  the  union 
acting  through  him,  could  and  would,  through  their  control  over 
Flynn's  workmen,  then  had  and  to  be  exercised  by  Butler,  prevent 
Flynn  from  using  brick  bought  by  him  from  March,  by  immediately 
stopping  Flynn's  workmen  laying  the  brick,  unless  Flynn  would 
agree  to  become  surety  for  the  payment  by  March  to  the  union  of 
the  .SlOO  demanded  by  it  from  him,  as  aforesaid,"  unless  the  union 
should  at  its  next  meeting  afford  the  plaintiff  some  relief  To  this 
Flynn  agreed,  and  the  plaintiff  continued  to  make  deliveries.  The 
plaintiff  appeared  at  this  mec^ting  and  was  accorded  a  hearing.  A 
motion  "to  reduce  the  fine"  to  S50  was  lost,  and  Butler  was  in- 
structed to  collect  it.  The  following  day  Butler  met  the  plaintiff 
and  Flynn,  told  them  that  the  union  held  out  for  the  SI 00.  and 
addetl  that  they  were  going  to  have  it.  From  what  he  said  then 
"he  intended  that  March  and  Flynn  should  understand  and  W- 
lieve,  and  they  did  understand  and  believe,  that  Butler  had  instruc- 
tions from  the  defendant  union  to  stop  the  bricklayers  who  were 
working  for  Flynn  from  work  for  him  upon  said  .  .  .  building,  and 
to  cause  them  to  strike,  unless  March  or  Flynn  at  once  paid  the 
hundred  dollars  demanded  by  the  defendant  union;  and  that  he. 
Butler,  could  and  would  do  as  he  represented  that  he  was  instructed 
to  do."  Flynn  and  March  both  protested  again.st  the  pa>Tnent,  but 
influenced  liy  the  aforesaid  repr(\sentations  of  Butler.  Fhnn,  who 
was  indebted  to  March  for  brick,  paid  Butler  the  -SKK)  with  the  as- 
sent of  March,  and  charged  the  same  to  March  on  his  account;  and 
paid  money  was  paid,  as  aforesai<l,  to  save  greater  loss  threatened. 


352  LEGALITY   OF   ENDS   PURSUED  [CHAP.  V 

as  aforesaid,  to  the  business  of  March  and  Flynn,  and  for  that  reason 
only.  Butler  paid  over  the  money  to  the  defendant  union  at  its  next 
meeting. 

Demands  for  the  return  of  the  money  were  made  on  the  defend- 
ants and  refused.  The  complaint  seeks  the  recovery  of  the  money 
so  paid. 

Prentice,  J.  The  complaint  alleges  that  the  defendants  con- 
spired, combined  and  confederated  with  each  other  and  with  other 
persons  to  extort,  demand  and  obtain  from  the  plaintiff  the  sum  of 
$100.  .  .  . 

The  plaintiff  further  claims  that  the  combination  for  the  pur- 
poses of  its  controversy  with  him,  resulting  in  the  payment  by  him, 
was  an  unlawful  one.  He  claims  that  it  was  unlawful  (1)  because 
its  object  was  unlawful,  and  (2)  because  the  means  to  accompUsh 
that  object  were  unlawful.-  He  also  claims  that,  as  the  payment 
was  one  into  which  he  was  coerced  through  the  operation  of  this 
unlawful  conspiracy,  he  is  entitled  to  recover  it  back.  The  defend- 
ants do  not  deny  that  a  combination  or  confederation  of  men,  either 
for  the  accomphshment  of  an  unlawful  object  or  for  the  accomplish- 
ment of  a  lawful  object  by  unlawful  means,  is  unlawful;  neither 
do  they  deny  that  if  the  combination  between  them,  which  resulted 
in  the  payment  in  question,  was  an  unlawful  one,  the  plaintiff  is 
entitled  to  recover.  The  contention  between  the  parties,  therefore, 
becomes  primarily  resolved  into  one  as  to  whether  the  conceded 
confederation  of  the  defendants,  through  which  the  payment  was 
obtained,  was  an  unlawful  one  by  reason  of  the  unlawful  character 
of  either  its  object  or  the  means  employed.  .  .  . 

The  disagreement  between  the  plaintiff  and  the  defendants  as  to 
the  lawfulness  of  the  object  of  the  latter's  combination  is  one  which 
arises  chiefly,  if  not  entirely,  out  of  a  difference  of  view  as  to  what 
is  to  be  regarded  as  that  object.  The  defendants  say  that  the  ob- 
ject was  the  ultimate  object  of  the  union,  to  wit,  among  other  things, 
the  promotion  of  the  welfare  of  its  members  and  the  advancement 
of  their  rights  and  privileges  as  laboring  men;  or,  if  not  that,  the 
freeing  of  themselves  from  the  competition  of  those  not  members 
of  the  union;  or,  if  not  that,  and  the  object  is  to  be  brought  into 
closer  relation  to  the  matters  in  controversy,  the  compelling  of 
"unfair"  bosses  to  become  "fair."  The  plaintiff  finds  the  object 
sought  in  an  attempt  to  punish  him  for  his  business  dealings  con- 
trary to  the  wishes  of  the  union,  by  the  exaction  from  him  of  $100 
as  the  price  of  his  freedom  from  harassment  in  the  marketing  of  his 
product. 

These  differences  in  the  analysis  of  the  situation  disclosed  by  the 
record  are  more  formal  than  vital.  Their  chief  importance  arises 
from  the  changed  form  which  must  be  given  to  the  discussion  of  the 
undorlying  questions  involved,  and  the  different  use  of  terms  which 
must  be  made  according  as  one  view  or  the  other  be  adopted.    For 


SECT.  VI]  FINES    AGAINST    EMPLOVEIt  353 

the  purposes  of  our  consideration,  therefore,  we  may  well  assume, 
as  did  the  court  below,  that  the  object  sought  by  the  defendants  in 
what  they  confederated  to  do  was  some  one  of  the  more  reunite 
oljj(!cts  claimed  by  tiu-m,  and  that  this  ol^ject  was  a  lawful  one. 
This,  of  course,  involves  the  transferring  into  tiie  field  lA  means 
that  which  would  in  the  other  view  be  regarded  a.s  an  end,  and  the 
consideration  of  all  that  the  defendants  did  in  the  accomplishment 
of  its  object  as  means  to  that  accomplishment.   .   .  . 

The  salient  facts  in  the'  story  sjjread  upon  the  record  are,  that 
this  defendant  association,  through  their  rejjresentative  the  dcfcjud- 
ant  Butler,  demanded  of  the  plaintilT  the  payment  to  them  of  a  sum 
of  money,  upon  the  threatened  alternative  that  if  payment  was  re- 
fusetl  he  would,  by  their  action  in  refusing  to  handle  his  product  hi 
their  work  then  in  progress,  i)e  amioy<'d  and  harasseil  in  the  enjoy- 
ment of  the  benefit  of  the  market  for  that  product  which  he  had 
obtained,  and  in  all  probability  be  wholly  deprived  of  that  market. 
The  action  thus  threatened  was  within  the  power  of  the  defendants 
to  take.  The  consequences  which  would  Hcnv  to  the  plaintiff  from 
it,  if  taken,  were  such  as  might  well  excite  in  him  a  reasonal)l<'  ap- 
prehension of  serious  injury.  To  the  pressure  thus  brought  to  Ijcar 
upon  him  he  yielded  and  paid  the  sum  exacted. 

There  is  nothing  in  the  record  to  relieve  this  picture.  It  does 
not  improve  it  to  say  that  the  d(>fendants  w(M-e  seeking  to  enforce 
a  penalty  or  to  collect  ilamages  asses.scd.  They  had  no  right  to 
inflict  a  penalty  upon,  or  assess  damages  against,  this  man  who 
owed  them  no  duty  through  association  in  the  meml)ership  of  the 
union,  by  contract,  or  otherwise.  The  plaintiff  owed  them  nothing. 
To  overawe  him  into  the  payment  of  something,  by  means  of  threats 
of  injury  in  their  power  to  inflict  and  of  such  a  character  as  to  natu- 
rally arouse  a  reasonable  apprehension  of  serious  consequences 
to  him,  in  the  event  of  his  refusal,  was  an  act  of  the  purest  extortion 
—  using  that  word  in  its  widest  meaning  —  and  in  the  plainest 
violation  of  our  statute,  .sec.  129G,  of  our  decisions,  and  of  the  uni- 
versally-accepted principles  of  the  common  law.  State  v.  Cllidden, 
55  Conn.  46,  8  Atl.  890;  State  v.  Stockford,  77  Conn.  227,  58  Atl. 
769.  .  .  . 

The  most  elemental  principles  of  justice  and  rigiit,  which  have 
by  universal  consent  been  adopted  into  the  conunon  law,  suffice 
for  a  conclusion  that  money  cannot  be  lawfully  exacted  of  a  man  in 
the  manner  here  successful.  We  are  aware  of  no  case  where  in  the 
progress  of  a  lalior  or  trade  controversy  a  similar  attempt  to  extort 
money  as  the  price  of  forl)earance  from  threatened  injurious  action 
has  ever  come  before  the  courts,  save  that  of  Carew  r.  Rutherford, 
106  Ma.ss.  1,  where  the  attempt  is  characterized  a^s  a  species  of  an- 
noyance and  extortion  which  tiie  common  law  has  never  tolerated. 

It  is  attcMupted  to  justify  the  action  of  the  union  in  its  money  dt^- 
mand,  upon  the  proposition  that   as  its  memlxTs  had  the  right  to 


354  LEGALITY    OF    ENDS    PURSUED  [CHAP.  V 

decline  to  handle  the  plaintiff's  brick  they  had  the  right  to  waive 
the  exercise  of  that  right  upon  such  conditions  as  they  might  impose. 
The  proposition  is,  that  money  demanded  and  obtained  as  the  price 
of  forbearance  from  the  conmaission  of  an  act  of  injury  —  even 
when  the  commission  of  that  act  is  held  over  the  man  to  coerce  and 
intimidate  him  into  compliance  with  the  demand  —  is  lawfully 
obtained,  if  the  threatened  act  was  one  which  the  threatener  might 
lawfully  do.  Such  a  proposition  could  oftentimes  be  used  to  justify 
the  vilest  blackmailer,  and  is  palpably  unsound  in  that  it  ignores 
certain  elements  which  may  be  present  to  convert  the  proceeding 
into  a  wrong  or  a  crime.    28  Amer.  &  Eng.  Ency.  of  Law  (2d  ed.),  141. 

It  is  further  said  that  the  action  of  the  defendants  was  justified 
in  the  exercise  of  the  rights  of  fair  trade  competition.  If  it  be  as- 
sumed that  these  journeymen  brickla3^ers  and  this  brick  manu- 
facturer, whose  business  touched  each  other  only  in  that  the  latter 
sold  brick  to  persons  for  whom  the  former  worked,  are  to  be  re- 
garded as  trade  competitors,  so  that  the  recognized  doctrines  ap- 
plicable to  such  competitors  are  applicable  to  them,  it  yet  remains 
that  the  means  resorted  to  in  this  case  would  not  be  permitted. 

There  is  no  error. 

In  this  opinion  the  other  judges  concurred.^ 


Section  7.    Strikes  to  Compel  Payment  of  Fines  Levied 
against  Union  Members 

REX  V.  SALTER 

Nisi  Prius.     1804 

5  Espinasse,  125 

This  was  an  indictment  or  a  conspiracy  against  the  defendants, 
who  were  journeymen  hatters. 

The  indictment  charged,  that  the  defendants  endeavoured  to 
extort  from  one  Walter  Kearns,  a  journeyman  hatter,  the  sum  of  a 
guinea;  and  on  his  refusal,  that  they  endeavoured  to  cause  and  pro- 
cure him  to  be  discharged  from  the  service  of  one  Walls,  a  master 
hat-maker,  by  whom  he  was  employed  in  his  trade  and  business  of 
a  hatter:  the  said  guinea  being  a  fine  for  his  having  broken  certain 
rules  alleged  to  have  been  made  for  the  regulation  of  journej^mcn 
hat-makers,  and  upon  his  refusal  to  pay  it,  in  order  to  prevent  the 
said  Kearns  from  being  employed,  that  they  in  order  to  compel  Walls 
to  discharge  him,  unlawfully  absented  themselves,  and  refused  to 
work  for  Walls. 

Kearns  was  called,  and  proved,  that  he,  with  several  others,  worked 
for  a  Mr.  Walls,  who  was  a  hat-manufacturer;   that  on  the  20th  of 

1  Compare:  Rtirkc  v.  Fay,  128  Mo.  App.  000;  Carters.  Ostcr,  134  Mo.  App. 
146  (threats  of  personal  violence  and  intimidation). 


SECT.  VII]  FI.N'P:,S   against   union    MK-MHKltS  355 

Noveiriber,  ls02,  ihc  jouincynicn  met  at  llic  iiumufactury  in  a  gar- 
ret; that  the  witness  was  sent  for,  and  told  tliat  he  must  pay  a  fine 
of  a  guinea;   that  th<'  defendants  and  several  others  were  assembled.' 

The  defendants  were  convicted. 


UEGINA  V.  IIEWriT 

Court  of  Queen's  Bench.     1851 

5  Cox  C.  C.  162 

This  was  an  indietmont  for  a  combination  by  workmen,  contrary 
to  0  (joo.  4,  e.  129,  and  for  a  consi)iracy. 

It  appeared  that  all  the  defendants  were  members  of  a  club  or 
society,  callcnl  "The  Philanthropic  Society  of  Coopers."  It  Wits  a 
lienefit  society.  Hewitt  was  the  president,  and  Jack  was  the  sec- 
retary. The  society  had  an  acting  memlx^r  in  every  cooper's  yard. 
A  man  named  Charles  Evans  was  a  member  of  the  society.  He 
was  workinjz;  in  Mr.  Turner's  yard,  but,  with  the  permi.ssion  of  Mr. 
Turner,  he  did  four  days'  work  at  the  steam  mills  of  Messrs.  Rosen- 
berg and  Montgomcr}^  where  steam  machinery  was  extensively  <'m- 
ployed  for  making  casks.  When  this  came  to  the  knowledge  of  the 
committee  of  the  .society,  they  inflicted  a  fine  of  10/.  payable  by 
instalments,  upon  l^jvans,  for  working  in  a  yartl  where  steam  ma- 
chinery was  employeil.  I'^vans  refused  to  pay,  and  the  other  men  in 
Mr.  Turner's  yard  then  left  their  work  and  refu.sed  to  return  while 
Evans  was  employed.  Evans  was,  in  consequence,  thrown  out  of 
work.  Each  man  who  left  Turner's  yard  on  account  of  Evans  was 
paid  9.S'.  for  his  loss  of  time,  by  the  committee.  The  fine  wa.s  imposed 
in  accordance  with  the  ruU^s  of  the  society. 

Wilkins,  Serjt.,  in  addressing  the  jury  for  the  defendants,  con- 
tended that  the  defendants  were  members  of  a  society'  which  they 
believetl  to  be  for  their  benefit.  They  made  certain  rules  and  im- 
posed fines  for  the  breach  of  them.  The  offence  chargeil  wa.s  con- 
spiring to  do  an  unlawful  act,  but  it  was  not  an  unlawful  act  to 
impose  a  fine  upon  a  member  of  the  societj^  for  breach  of  one  of  the 
rules  of  the  society,  unless  the  rules  were  unlawful  in  themselves, 
or  wore  made  for  an  unlawful  purpose.  Th(>  oliject  of  the  defendants 
was  to  teach  Evans  that  he  had  departed  from  his  duty  to  the  society, 
and  that  he  had  broken  its  rules.  The  object  of  the  Act  of  Parliament 
was  to  protect  the  masters  from  the  combinations  of  the  men:  iMit 
here  the  masters  did  not  complain,  and  it  was,  therefore,  difficult  to 
imagin(>  that  the  .statute  had  Ixvn  violated. 

Loud  C.vmi'hell,  C.  J.  (to  the  jury).  It  appears  to  me  that  this 
is  one  of  the  most  important  cases  ever  brought  Ix'fon'  a  British 

'  The  soconii  half  of  the  case,  dealing  with  the  admissibility  of  certain  evidence, 
18  omitted.  —  Eu. 


356  LEGALITY   OF   ENDS   PURSUED  [CHAP.  V 

i\iry,  and  upon  its  result  must  depend  very  much  the  prosperity  of 
the  manufacturers  and  the  good  of  the  operatives.  But,  let  it  be 
clearly  understood  that,  whatever  may  be  the  result  of  this  case^ 
such  societies  as  the  present  are  not  in  any  way  illegal.  The  Phil- 
anthropic Society  is,  according  to  its  rules,  a  most  lawful  and  a  most 
beneficial  institution;  the  object  of  it  is  to  take  care  of  its  members 
when  sick,  and  to  provide  a  decent  funeral  for  them  when  they  are 
called  away;  but  it  cannot  be  permitted  that,  under  the  guise  of 
such  laudable  objects,  the  members  shall  enter  into  a  combination 
or  conspiracy  to  injure  others.  By  law  every  man's  labour  is  his  own 
property,  and  he  may  make  what  bargain  he  pleases  for  his  own 
employment;  not  only  so  —  masters  or  men  may  associate  together; 
but  they  must  not,  by  their  association,  violate  the  law;  they  must 
not  injure  their  neighbour;  they  must  not  do  that  which  may  preju- 
dice another  man.  The  men  may  take  care  not  to  enter  into  engage- 
ments of  which  they  do  not  approve,  but  they  must  not  prevent 
another  from  doing  so.  If  this  were  permitted,  not  only  would  the 
manufacturers  of  the  land  be  injured,  but  it  would  lead  to  the  most 
melancholy  consequences  to  the  working  classes.  No  doubt  the 
defendants  may  have  been  under  a  delusion  that  they  were  doing 
what  they  were  entitled  to  do,  but  they  must  be  instructed  that  the 
law  must  be  obeyed,  and  that  they  cannot  be  permitted  to  injure 
their  neighbours  in  carrying  out  that  which  they  may  consider  to 
be  a  protection  to  themselves.  It  has  been  stated  by  the  witnesses, 
that  a  fine  follows  a  man  all  over  London  and  all  over  England. 
This  shows  the  power  of  the  society.  Let  them  have  their  rules, 
and  let  them  act  under  them;  but  if  they  are  to  fine  for  some  non- 
descript offence,  and  that  fine  is  to  follow  a  man  all  over  England,  — 
if  the  man  is  always  to  go  about  with  that  brand  upon  him,  it  be- 
comes the  more  important  that  judges  and  juries  should  see  that  such 
societies  do  not  infringe  the  law.  The  payment  to  the  men  of  the 
95.  each  for  their  loss  of  time  was  taken  from  the  funds  of  the  society, 
and  was  a  clear  perversion  of  its  objects.  Verdict  —  Guilty. 

Lord  Campbell,  C.  J.  This  is  a  case  in  which  it  is  right  to  pass 
judgment  at  once.  The  offence  is  a  most  serious  one,  and,  if  allowed 
to  pass  with  impunity,  would  bring  ruin  upon  the  trade  and  manu- 
facturers of  this  country,  and  would  involve  in  its  ruin  the  work- 
men, upon  whom  the  prosperity  of  this  country  mainly  depends. 
It  clearly  appears  that  this  charital^le  institution,  departing  from 
its  lau(lal)lo  purpose,  was  apphed  to,  to  prevent  one  of  its  members 
from  exercising  his  free  will,  and  employing  his  industry  in  a  way 
which  he  thought  most  to  his  advantage.  It  is  clear  that  the  presi- 
dent, secretary,  and  committee  resolved  that  Evans  should  be  pun- 
ished for  having  gone  to  work  at  the  steam  mills;  that  they  unlaw- 
fully imposed  on  him  a  fine  for  so  doing,  and  tiiat  they  proccHMlcd  by 
unlawful  means  to  induce  him  to  pay  that  fine.     This  is  an  offence 


SECT.  VII]  FINES   AGAINST   UNION    MEMBERS  357 

which  the  law  iiiiist  punish,  and  I  liofH'  it  will  ix-  known  to  all  these 
socictio.s,  that  while  they  will  he  protected  by  tlu'  law  when  acting 
lawfully,  the  law  will  punish  them  when  they  interfere  with  the  free 
will  and  the  exercise  of  the  industry  of  their  nienilx'rs.  It  is  an  of- 
fence for  which  they  must  Ix'  severely  punished. 

The  defendants  were  then  sentenced  to  various  terms  of  impris- 
onment. 


GIBLAN  V.  NATIONAL  AMALGAAUTED  LABOUREIIS' 

UNION 

Court  of  Appeal.     1903 
[19031  2  A'.  B.  GOO 

The  action  was  l)roufi;ht  by  James  Giblaii,  a  labourer,  residing 
at  Newport,  Mon.,  against  the  National  Amalgamated  Labourers' 
Union  of  Great  Britain  and  Ireland,  Harry  W.  Williams,  its  general 
secretary,  and  John  Toomey,  its  local  secretary  at  Newport,  claim- 
ing damages  for  lo.ss  of  wages,  also  an  injunction.   .   .   . 

The  facts  leading  to  the  commencement  of  the  present  action 
were  as  follows: 

In  or  about  the  year  1891  the  plaintiff,  who  was  at  the  time  a 
riveter  employed  in  the  business  of  repairing  ships,  became  a  mem- 
Ijer  of  the  defendant  union.  He  lived  at  Newport,  Mon.,  where 
there  was  a  brancii  of  tlu>  union,  and  ultimately  he  l>ecame  treasurer 
of  that  branch,  holding  that  office  in  1896  and  1897.  In  1899  some 
difficulties  arose  with  reference  to  his  accounts;  and  it  was  alleged 
that  he  had  retained  a  sum  in  hand  of  about  38/.,  which  should  have 
been  handed  over  to  the  .society.  He  was  seen  l)y  the  general  secre- 
tary, the  defendant  Williams,  in  reference  to  the  matter,  and  on 
September  28,  1899,  an  agreement  was  signed  by  which  he  admitted 
his  indebtedness  to  the  .society  in  a  sum  of  36/.  9s.  2d.,  and  agreed 
to  pay  this  by  10/.  on  October  9,  1899,  and  1/.  a  month  until  the 
whole  debt  was  li(}uidated.  As  he  failed  to  carry  out  this  agree- 
ment an  action  was  brought  against  him  in  the  county  court,  at  the 
instance  of  the  union,  in  December,  1899,  when  judgment  was  ob- 
tained against  him  for  the  amount  of  the  arrears  payable  under  the 
agreement,  which  at  that  time  amounted  to  about  11/.  By  the  judg- 
ment he  was  ordered  to  pay  5/.  forthwith,  and  the  l)alance  of  the 
amount  by  instalments  of  1/.  per  month.  Shortly  afterwards  he 
paid  4/.,  but  after  making  that  payment  lie  failed  to  make  any  further 
payments  under  the  ju<lgnient  or  the  agreement. 

On  February  5.  1900,  whilst  the  plaintiff  was  engaged  at  work  at 
the  Prince  of  Wales  Dry  Dock  at  Swan.sea,  the  defendant  Williams 
went  to  the  foreman  and  gave  him  notice  that  unless  the  plaintiff 
was  dismi.ssed  the  other  union  men  who  were  empiov<'d  there  would 
be  called  out  on  strike.     In  consecjuence  of  that  the  plaintiff's  em- 


358  LEGALITY   OF   ENDS   PURSUED  [CHAP.  V 

ployers  discharged  him,  and  for  some  two  or  three  weeks  he  was  out 
of  emplo}Tnent.  After  that,  however,  he  again  obtained  employ- 
ment, and  was  in  full  work  until  nearly  the  close  of  the  year  1900, 
Meanwhile,  he  had  made  no  payments  in  respect  of  the  amount  he 
owed  the  union,  and  in  June,  1900,  a  judgment  summons  was  issued 
against  him  at  the  instance  of  the  union  in  the  county  court,  claim- 
ing that  111.  was  due  from  him.  This  proved  to  be  an  error,  and  the 
smiimons  was  dismissed  with  costs.  This  fact,  according  to  the 
plaintiff's  case,  irritated  the  officials  and  members  of  the  union, 
and  determined  them,  by  the  course  they  subsequently  took,  to 
punish  him  by  preventing  him  from  obtaining  emplojanent  or  from 
continuing  to  work  if  he  happened  to  obtain  a  job.  He  was  still  a 
member  of  the  union,  and  had  duly  paid  his  contributions  as  such. 
In  August,  1900,  his  position  in  relation  to  the  union,  and  his  in- 
debtedness to  that  body,  came  up  for  consideration  at  the  annual 
general  meeting  of  the  union,  which  took  place  on  August  6,  7,  and 
8,  at  the  town  hall,  Newport,  when  a  resolution  for  his  expulsion 
was  passed,  which  was  embodied  in  the  following  minutes:  "The 
general  secretary  explained  what  he  had  done  in  this  matter,  and 
the  position  at  present.  He  said  that  Giblan  seemed  determined 
not  to  pay  back  to  the  society  his  defalcations,  but  was  putting  it 
to  all  the  trouble  and  expense  he  could.  After  the  whole  of  the  facts 
had  been  stated,  it  was  moved  by  brothers  J.  Burns  and  Kenny, 
'  That,  after  hearing  the  general  secretary's  statement  re  Giblan's 
actions,  and  the  amount  of  his  defalcations,  he  shall  be  expelled 
from  this  union  and  shall  only  be  allowed  to  rejoin  by  paying  to  the 
society  such  moneys  as  are  due,  being  defalcations  when  treasurer 
of  Newport  No.  4  branch.  The  terms  of  payment  to  be  arranged 
with  the  general  secretary  on  the  basis  of  this  resolution.'  " 

The  plaintiff  having  thus  been  expelled  from  the  union,  the  de- 
fendant Williams,  on  August  11,  1900,  wrote  to  the  then  treasurer 
of  the  Newport  branch,  informing  him  of  the  resolution,  and  request- 
ing him  to  post  by  registered  letter  to  the  plaintiff  a  notice  of  his 
expulsion,  also  requesting  him  to  consider  the  plaintiff  a  non-mem- 
ber, and  so  to  inform  the  members  of  that  and  other  branches,  and 
to  post  up  in  the  club-room  a  notification  that  he  was  not  a  member, 
and  that  he  must  be  treated  by  the  members  as  a  non-unionist  until 
further  orders.  Notice  of  expulsion  was  accordingly  sent  to  the 
plaintiff.  At  a  district  joint  committee  meeting  held  at  Newport 
on  October  13,  1900,  several  union  men  were  fined  for  working  with 
the  plaintiff  as  being  an  expelled  member. 

On  December  29,  1900,  the  plain*^iff  was  in  employment  at  New- 
port, when  the  defendant  Toomey,  the  union's  local  secretary  there, 
went  to  his  employer  and  gave  him  notice  that  unless  the  plaintiff 
was  discharged  other  men  in  the  employment  would  be  called  out 
by  the  union;  and  Toomey  also  gave  notice  to  the  other  men,  being 
members  of  the  union,  that  if  they  worked  with  the  plaintiff  they 


SECT.  VII]  FINES   AGAINST   UNION   MEMBERS  359 

would  be  called  out.  Conseciuently  the  i)hiintiff  \va,s  di.sohtirj^cd. 
In  a  similar  way,  on  four  .subscciucnt  {)cca.sion.s,  at  Nj'Wjx^rt,  Siuirp- 
nes.s,  and  Swansea,  tlie  last  ()cca,si(jn  l)cin(^  on  April  19,  lOOl,  once 
through  the  intervention  of  the  defendant  \\'ilhani<,  and  thrice 
through  that  of  the  defendant  Tooiney,  the  plaintiff  wa8  prevented 
from  retaining  employment,  in  each  cjuse  notice  being  given  to  the 
union  men  in  tlie  employment  that  if  they  wfjrked  witli  the  plain- 
tiff they  would  l)e  calh'd  (nit.  It  ai)j)eare(l  that  another  ground  for 
tho.se  proc(>edings  against  tlie  plaintiff  was  that  he,  a  non-unionist, 
was  obtaining  employment  when  union  men  were  out  of  work.'  .  .  . 

Ro.MEU,  L.  J.-  What  are  the  facts  of  this  case  as  stated  by  Wal- 
ton, J.,  and  found  by  the  jury?  In  effect  they  are  that  the  defend- 
ants Williams  and  Toomey,  as  officers  of  the  defendant  union,  had, 
by  virtue  of  their  position,  control  over  the  men  of  the  union,  and 
consequently  power  to  influence  employers  by  calling  out  or  threaten- 
ing to  call  out  the  men  unless  the  demands  of  the  defendants  Wil- 
liams and  Toomey  were  complied  with;  and  acccjrdingly  that  the 
defendants  combined  to  prevent,  and  did  prevent,  the  plaintiff  from 
getting  or  retaining  employment  by  calling  out  or  threatening  to 
call  out  the  men;  and,  further,  that  this  cau.sed  damage  to  the  plain- 
tiff to  the  extent  of  100/.,  and  the  jury  negatived  the  suggestion  that 
what  the  defendants  did,  first,  was  only  to  warn  the  employers  that 
the  men  would  leave  in  consequence  of  the  men  objecting  to  work 
with  the  plaintiff;  and,  secondly,  was  done  in  fact  in  con.sequence 
of  the  men  objecting  to  work  with  the  plaintiff.  Lastly,  it  is  found 
that  the  defendants  acted  as  they  did  in  order  to  compel  the  plain- 
tiff to  pay  the  arrears  of  some  money's  due  from  him  to  the  union. 

The  question  then  is  whether,  on  these  facts,  the  defendant  Toomey 
ought  not  to  have  Ixhmi  held  liable  to  the  plaintiff,  as  well  as  the  de- 
fendant Williams  who  was  al.so  found  to  have  Ix'cn  actuated  by  a 
desire  to  punish  the  i)laintiff  for  not  paying  the  arrears.  Now,  since 
the  decision  of  the  House  of  Lords  in  the  case  of  Quinn  v.  Leathem, 
[1901]  A.  C.  495,  I  take  it  to  be  clear,  even  if  it  had  not  been  clear 
before,  that  a  combination  of  two  or  more  persons,  without  justi- 
fication, to  injure  a  workman  by  inducing  employers  not  to  employ 
him  or  continue  to  employ  him,  is,  if  it  results  in  damage  to  him, 
actionable.  But,  although  I  think  there  is  no  difficulty  in  stating 
the  law,  I  fully  realize  that  consid(>rable  difficulty  may  often  ari.se 
in  particular  cases  in  ascertaining  what  is  a  "justification"  within 
the  meaning  of  my  statement.  As  to  this,  I  can  only  say  that  regard 
must  be  had  to  the  circumstances  of  each  case  as  it  arises,  and  that 
it  is  not  practically  feasible  to  give  an  exhaustive  definition  of  the 
word  to  cover  all  cases;    and  I  would  refer  to  what  I  have  already 

'  The  jury  found  that  the  defendant  W  illiams  acted  in  order  to  pnni.«jh  the 
piaintitT  for  not  paying  the  arrears  of  hi.s  defalcation.'^,  hut  that  the  defi-ndant 
Toomey  did  not.  —  Kn. 

-  Only  the  opinion  of  Romer,  L.  J.,  is  niven.  Separate  opinions  wtre  iciulered 
by  Vaughan  Williams,  L.  J.,  and  by  Stirling,  L.  J.  —  Ed. 


360  LEGALITY   OF   ENDS    PURSUED  [CHAP.  V 

said  on  a  similar  point  in  the  judgment  I  have  just  dehvered  in  the 
case  of  the  Glamorgan  Coal  Co.  v.  South  Wales  Miners'  Federation, 
[1903]  2  K.  B.  545.  I  will  only  add  that  I  do  not  think  any  exces- 
sive practical  difficulty  would  arise  in  directing  a  jury  on  the  point 
in  any  particular  case;  and  I  may  refer,  as  illustrating  this,  to  the 
direction  given  to  the  jury  by  FitzGibbon,  L.  J.,  in  the  case  of  Quinn 
V.  Leathem,  [1901]  A.  C.  at  p.  500. 

In  the  case  now  before  us  I  cannot  say  that  I  feel  any  difficulty 
in  applying  the  law  as  regards  the  defendant  Toomey  For,  on  the 
facts,  I  have  simply  to  determine  whether  two  or  more  persons,  who 
by  virtue  of  their  position  have  special  power  to  carry  out  their 
design,  are  justified  in  combining  to  prevent,  and  in  fact  preventing, 
a  workman  from  obtaining  any  employment  in  his  trade  or  calling, 
to  his  injury,  merely  because  they  wish  to  compel  him  to  pay  a  debt 
due  from  him.  In  my  opinion  they  are  not  justified;  and  conse- 
quently the  defendants  Toomey  and  Williams  are,  in  mj^  opinion, 
liable  to  the  plaintiff  for  the  damage  suffered  by  him  through  the 
conduct  of  the  defendants.  .  .  . 

But  I  should  be  sorry  to  leave  this  case  without  observing  that, 
in  my  opinion,  it  was  not  essential,  in  order  for  the  plaintiff  to  suc- 
ceed, that  he  should  establish  a  combination  of  two  or  more  persons 
to  do  the  acts  complained  of.  In  my  judgment,  if  a  person  who,  by 
virtue  of  his  position  or  influence,  has  power  to  carry  out  his  design, 
sets  himself  to  the  task  of  preventing,  and  succeeds  in  preventing, 
a  man  from  obtaining  or  holding  emplo\mient  in  his  calling,  to  his 
injury,  by  reason  of  threats  to  or  special  influence  upon  the  man's 
employers,  or  would-be  employers,  and  the  design  was  to  carry  out 
some  spite  against  the  man,  or  had  for  its  object  the  compelling  him 
to  pay  a  debt,  or  any  similar  object  not  justifying  the  acts  against 
the  man,  then  that  person  is  lial)le  to  the  man  for  the  damage  con- 
sequently suffered.  The  conduct  of  that  person  would  be,  in  my 
opinion,  such  an  unjustifiable  molestation  of  the  man,  such  an  im- 
proper and  inexcusable  interference  with  the  man's  ordinary  rights 
of  citizenship,  as  to  make  that  person  liable  in  an  action.  And  I 
think  this  view  is  borne  out  by  the  views  expressed  by  the  members 
of  the  House  of  Lords  who  depided  the  case  of  Quinn  v.  Leathem. 

The  remaining  question  is  as  to  the  liability  of  the  defendant 
union.  That  depends  upon  whether,  if  the  acts  complained  of  had 
been  done  by  the  executive  committee,  the  union  would  have  lx;en 
liable.  I  have  come  to  the  conclusion  that  the  union  would  have 
been  liable  on  the  principle  stated  in  Barwick  v.  English  Joint  Stock 
Bank,  L.  R.  2  Ex.  259,  —  that  the  acts  were  done  in  the  service  and 
for  the  benefit  of  the  union. ^ 

'  The  effect  of  Section  3  of  the  English  Trade  Disputes  Act,  1906,  passed  after 
the  decision  in  this  case,  was  distmssed  in  the  subsequent,  somewhat  similar 
case  of  C'onway  v.  Wade,  [1909]  A.  C.  500  (threat  made  by  district  delegate  of 
union,  acting  without  authority). 


SECT.  VII]  FINES  AGAINST  UNION   MEMBERS  3G1 

BRENNAN  v.  UNITED  HATTERS 

Supreme  Couut  of  Xkw  Jersey.     1906 

73  N.  J.  L.  7J9 

Pitney,  J.  This  was  an  action  of  tort  l)rou}rht  to  recovor  dam- 
ages sustained  by  the  phiintilY  throiiji;h  interference  by  the  defend- 
ants with  his  employment  in  his  trade  as  a  hatt^-r.  PhiintifT  was  a 
memljcr  of  Local  Tnion  No.  17  of  the  United  Hatters  of  North 
America.  The  tlefendants  are  this  local  union  (su<'d,  under  Pamph. 
L.  1S85,  p.  2(),  as  a  voluntary  association  consist inj^  of  mon"  than 
seven  members)  and  twelve  individuals,  one  of  whom  wius  the  .secre- 
tary of  the  union,  and  the  other  eleven  constituted  a  committee 
thereof,  known  as  the  "vi<i;ilance  committtH}."   .   .   . 

A  trial  beinji;  had  befoi-t-  tlie  judf^e  of  the  Essex  ('iicuit  ( 'ourt  and 
a  jury,  there  was  a  general  verdict  in  favor  of  the  plaintifT,  and  the 
con.se(iuent  judgment  is  now  b('f(jre  us  for  review.  The  assignments 
of  error  relate  to  certain  rulings  of  the  trial  judge  that  are  evidenced 
by  bills  of  exceptions. 

It  apix'ars  that  plaintifT  was  a  menil)er  in  good  standing  of  the 
United  Hatters'  union,  and  was  working  in  Connett-s  factory  as 
one  of  .several  hundred  men,  all  of  whom  belonged  to  the  same  union. 
He  was  a  foreman,  in  receipt  of  S18  per  week  as  wages.  By  the 
rules  of  the  union  no  man  could  be  employed  in  such  a  shop  unless 
his  memlxMsiiip  card  or  check  wius  on  <lei)osit  with  the  shop  steward, 
who  was  an  agent  of  the  union  at  the  factory.  By  the  same  rules 
members  of  the  union  were  not  permitted  to  work  in  the  shop  to- 
gether with  any  man  who  was  not  a  member  of  the  union  or  not  in 
posses.sion  of  his  card.  The  union  included  within  its  jurisdiction 
about  two  thousand  two  hundred  men,  employed  in  about  fifteen 
different  factories,  situate  in  a  district  comprising  Orange,  Hacketts- 
town,  Bloomfield,  Millburn  and  Livingston.  All  the  hat  factories 
in  this  district  were  under  the  jurisdiction  of  the  .same  union.  By 
an  agreement  made  between  the  union  and  the  manufacturers, 
every  man  employed  in  any  of  these  factories  must  have  a  mem- 
bership card  on  deposit  with  the  shop  steward. 

It  appears  that  by  th(>  rules  of  the  union  the  as.sociation  has  power 
to  fin(>  and  reprimaml  or  otherwise  punish  any  memlxT  violating 
the  laws  of  the  association  or  the  rules  of  trade.  The  viligance  com- 
mittee has  power  to  transact  any  bvisiness  pertaining  to  the  welfare 
of  the  trade  in  the  time  intervening  between  the  regular  meetings 
of  the  union.  By  the  rule  n^lating  to  "Trial  and  .\p|>i'al,"  it  is  pro- 
vided as  follows:  "Any  meml)er  of  this  association  shall  be  (>ntitled 
to  due  notice  and  a  fair  trial  upon  Iwing  accused  of  any  violation 
of  its  laws  or  the  rules  of  trad(>,  l)ut  no  memlxT  .<;hall  ho  put  on  trial 
unless  charges  are  submitted  in  writing  i)y  a  memlx-r  of  the  associa- 
tion." 


362  LEGALITY   OF   ENDS   PURSUED  [CHAP.  V 

It  appears  that  on  August  5th,  1902,  a  meeting  of  the  vigilance 
committee  was  held,  at  the  instance  of  two  members  of  the  associa- 
tion named  Sereno  and  Alvino,  to  investigate  a  complaint  made  by 
them  on  the  authority  of  Foreman  Brennan  (the  plaintiff  herein) 
against  one  Trancone,  to  the  effect  that  Trancone  had  accused  them 
(Sereno  and  Alvino)  of  lying  in  wait  around  Brennan 's  house  for 
the  purpose  of  doing  him  some  injury.  Brennan  was  called  before 
the  meeting  as  a  witness.  Trancone  appears  to  have  been  present 
as  the  party  accused.  Each  was  examined  by  the  committee  in 
the  absence  of  the  other.  It  appears  from  the  minutes  that  in  the 
course  of  the  investigation  Trancone  stated  to  the  committee  (in 
Brennan's  absence)  that  he  himself  had  on  several  occasions  paid 
Brennan  small  sums  of  money  "to  get  good  work,"  and  that  one 
Panegraso  had  given  money  to  Brennan  for  the  same  purpose.  Tran- 
cone having  retired  from  the  presence  of  the  committee,  Brennan 
was  recalled,  and  the  statement  made  by  Trancone  before  the  com- 
mittee was  read  to  him.  Brennan  denied  it.  The  committee  then 
called  Trancone  before  Brennan  to  verify  his  statement.  Trancone 
declared  that  his  statement  was  true  in  every  particular,  and  Bren- 
nan again  denied  the  charge.  Subsequently,  at  the  same  meeting, 
Panegraso  came  before  the  committee,  under  escort  of  Brennan, 
"as  a  witness  to  prove  that  Trancone  lied."  Trancone  was  recalled 
and  reaffirmed  his  accusation  in  the  presence  of  Brennan,  Panegraso 
and  the  committee.  Thereupon  all  parties  were  notified  to  appear 
before  the  committee  on  the  following  afternoon  (August  6th).  Upon 
that  date  another  meeting  of  the  vigilance  committee  was  held, 
concerning  which  the  minutes  disclose  only  the  following:  "Timothy 
Brennan's  case  was  then  taken  up,  and  Michael  Panegraso  was 
called  before  the  committee  to  answer  the  charge  that  he  had  ever 
given  money  to  Brennan.  He  denied  that  he  had  ever  given  money 
to  Brennan.  I\Ir.  Brennan  was  called  and  admitted  having  met 
Panegraso  in  Bloomfield.  Motion  that  Michael  Panegraso  and 
Benedetto  Trancone  be  fined  the  sum  of  $500  each,  $250  down  and 
$5  per  week,  carried.  Motion  that  Mr.  Brennan  be  fined  the  sum 
of  $500,  $2.50  down  and  $1  per  week,  and  to  give  up  his  place  as 
foreman  for  the  space  of  one  year  in  Connett's  hat  factory,  carried 
unanimously." 

This  action  of  the  vigilance  committee  was  reported  to  a  meet- 
ing of  the  association  held  on  the  following  day  (August  7th),  and 
a  motion  was  carried  that  the  report  be  adopted  as  read.  It  should 
be  observefl  that  this  ratification  by  the  association  of  the  action 
of  its  committee  is  not  m(>ntioned  in  the  plaintiff's  declaration  herein. 
In  order  to  sustain  the  judgment  under  review,  the  declaration  will 
be  treated  as  amended,  if  necessary,  in  this  regard. 

On  August  15th  the  secretary  of  the  union  (who  is  one  of  the  de- 
fendants herein)  went  to  Connett's  hat  factory,  where  Brennan 
was  working,  explained  to  him  the  action  taken  by  the  vigilance 


SECT.  Vn]  FINES   AGAINST   UNION   MEMBERS  3G3 

c'ouiinittcc  and  by  the  iiicctiiiK  of  tho  association,  and  denmndf*! 
payinont  of  the  $250.  liicruian  refused  to  pay  it,  and  the  secretary 
thereupon  went  to  the  shop  steward  and  took  Bn-nnan's  cheek  from 
the  box.  It  is  inferal)le  from  the  cvidrncc  that  this  was  don<'  by  the 
secretary  in  the  rcKuhir  course  of  liis  <hity,  and  that  in  doinn  it  In* 
ucted  as  aj^r'nt  for  the  jussociation. 

Afterwards,  and  on  the  same  day,  I5r«iiii:in's  couns^*!  wrote  to  the 
uni<Mi,  protestinji  afi;ainst  tlie  action  taken,  on  the  ground  that  no 
char^^es  liad  been  preferred  nor  any  notice  of  a  trial  or  hearing  k'^'''" 
to  him,  as  re(}uired  by  the  hiws  of  the  association.  Subsc-quently, 
and  under  (hite  of  Aufjust  ITtli,  a  charge  was  preferred  in  writinu  by 
Trancone,  and  Hrerman  was  notified  of  a  hearing;  bef(jre  the  vijrihmce 
committee  to  be  held  on  the  ISth.  He  declined  to  attend  on  the 
grouml  that  he  could  not  appear  l('f:;ally  until  his  card  was  returned 
to  him,  and  on  the  turtlici-  K'"und  that  members  of  the  vigilance 
committee  had  made  pul)lic  statements  showinti;  that  they  were 
prejudic(>d  afi;ainst  him. 

At  a  meetiny;  of  the  lus.sociation  held  on  September  4th  a  motion 
that  Brennan  be  exonerated  wius  carried  l)y  a  two-thirds  vote.  Sliortly 
thereafter  his  card  was  returned  to  him  and  he  went  back  to  work 
in  the  Connett  factory. 

On  Aufi;ust  15th,  a  few  minutes  after  the  secrctarj'  of  the  union 
took  up  Brennan's  membership  card,  he  was  discharged  by  the 
head  foreman  on  the  ground  that  Brennan  no  longer  had  his  check 
in  the  box.  Upon  being  exonerated  by  the  union,  Brennan  informed 
the  head  foreman  of  the  fact,  and  was  immediately  re-employed. 

The  trial  judge,  having  denied  a  motion  for  nonsuit  made  at  the 
close  of  the  plaintiff's  case,  and  a  motion  for  direction  of  a  verdict 
in  defendants'  fav:)r  made  at  the  close  of  the  whole  case,  submitted 
the  issue  to  the  jury,  with  instructions  to  the  effect  that  if  they 
found  the  plaintifT  hail  sust:iined  damage  from  the  acts  of  the  de- 
fendants in  the  premises,  and  if  tlie  vigilance  committee  proceeded 
against  the  plaintiff  without  charges  submitted  in  writing,  without 
notice  to  the  plaintiff,  or  without  fair  trial,  thcni,  unless  the  plain- 
tiff had  waiv(>(l  his  rights  by  submitting  himself  to  the  jurisdiction 
of  the  vigilance  committee  or  of  the  association,  he  was  entitled  to 
recover  to  the  extent  of  the  pecuniary  injury  that  was  the  natural 
result  of  the:  action  of  the  defendants.  Other  and  more  questionable 
elements  of  damage  wen^  included  in  the  instructions,  Init  any  ground 
of  complaint  in  this  regard  was  waived  upon  the  argument  h(M-e. 

Rcn-ersal  is  asked  upon  only  two  grounds,  both  of  which  are  as- 
sumed to  have  been  raised  in  th(^  nu^tion  for  nonsuit  and  for  direc- 
tion of  a  verdict,  viz.: 

First.  That  the  suspension  or  exjiulsion  of  a  memb(>r  of  a  lal">or 
union  (it  i)eing  a  voluntary,  unincorporated  association),  in  cjises 
where  no  property  rights  are  involved,  cannot  supjwrt  a  claim  for 
damages  against  the  union  by  the  meml")er  so  expelled  or  suspended. 


364  LEGALITY   OF   ENDS   PURSUED  [CHAP.  V 

And,  secondly,  that  the  plaintiff  had  no  right  to  complain  of  his 
trial  and  consequent  suspension,  and  this  on  the  ground  that  the 
charge  made  by  Trancone  against  him  was  put  in  writing  and  read 
to  the  plaintiff;  that  he  participated  in  the  trial  before  the  vigilance 
committee  and  produced  witnesses  who  testified  in  his  behalf;  that 
he  received  notice  of  the  hearing  before  the  committee  upon  the 
second  day,  at  which  hearing  he  attended,  with  witnesses,  and  was 
tried  in  accordance  with  the  rules  and  by-laws  of  the  association; 
and  that  he  waived  any  formalities  that  may  not  have  been  stricth' 
observed  by  failing  to  object  to  the  proceedings  for  irregularity. 

To  deal  with  the  second  point  first.  We  make  no  question  that 
the  subject-matter  of  the  charges  —  the  acceptance  from  a  work- 
man of  a  bribe,  intended  to  secure  favorable  terms  of  emplo3Tnent 
—  involving,  manifestly,  a  gross  breach  of  Brennan's  duty  to  his 
employer,  as  well  as  to  his  fellow-employees,  and  involving  moral 
turpitude  as  well,  was  within  the  jurisdiction  of  the  vigilance  com- 
mittee, although  no  written  rule  is  cited  to  that  effect.  But  jurisdic- 
tion of  the  subject-matter  was  not  alone  sufficient  to  entitle  the 
committee  to  proceed.  According  to  the  express  requirement  of  the 
by-laws  of  the  association,  jurisdiction  over  the  person  of  the  party 
accused  must  first  be  acquired  by  the  submission  of  written  charges 
and  the  giving  of  due  notice  to  the  accused.  B}^  "due  notice"  is 
meant,  of  course,  notice  that  he  is  to  be  put  upon  trial  at  a  specified 
time  upon  specified  charges,  and  the  notice  must  be  given  in  season 
to  afford  him  a  reasonable  opportunity  to  make  preparation  to  meet 
the  charges  by  summoning  witnesses  in  his  behalf.  The  by-law  like- 
wise entitles  the  member  accused  to  "a  fair  trial."  Just  what  this 
phrase  imports,  and  how  far  and  under  what  circumstances  the 
courts  of  law  could  properly  ignore  the  results  of  a  trial  had  under 
such  a  by-law,  on  the  ground  that  it  was  not  a  fair  trial,  we  find  it 
unnecessary  to  determine.  For  we  are  of  opinion  that,  clearly,  the 
plaintiff  in  the  case  at  hand  was  put  upon  trial  without  charges  sub- 
mitted in  writing  by  a  member  of  the  association,  and  without  due 
notice,  such  as  are  prescribed  by  the  by-laws  of  the  association. 
It  results,  therefore,  that  the  vigilance  committee  acted  without 
jurisdiction  unless  plaintiff  by  his  own  conduct  consent<^d  that  they 
should  proceed.  With  respect  to  his  consent,  there  was,  we  think, 
at  least  a  disputable  question  for  the  jury's  determination.  It  is 
clear  enough  that  at  the  meeting  of  August  5th  the  plaintiff  was  in- 
formed tliat  Trancone  had  made  an  accusation  reflecting  upon  his 
integrit\\  But  Brennan  was  then  present  as  a  witness  respecting 
a  charge  that  had  been  made  against  Trancone,  and  he  may  well 
have  supposed  that  Trancone's  accusation  against  him  was  under 
consideration  })y  the  committ(>e  solely  as  it  affected  his  credibility 
as  a  witness.  It  is  not  clear  that  JinMuian  knew,  on  the  5th,  that 
the  committee  meeting  appointed  for  the  following  aft(>rnoon  was 
to  take  up  Trancone's  accusation  as  a  basis  of  action  against  him 


SECT.  VII]  FINES   AGAINST   UNION    MEMliEILS  305 

(Brennan).  So  fur  u.s  tlic  proceedings  of  Augu-st  Gth  are  concerneci, 
it  does  not  appear  that  Brennan  was  then  notified  that  the  com- 
mittee had  his  case  under  considi'ration. 

It  is  suf^f^ested  tliat  Brennan,  In'  an  ajJiH-al  to  the  association,  taken 
aft<*r  his  discliar{i;e  from  tlie  Connett  factory,  subniitt<'(i  liimself  to 
the  jurisdiction.  The  grounds  of  tliis  apjieal  and  the  circumstanc<'S 
under  vvhicii  it  was  taken  do  not  appear,  nor  does  it  clearly  apfx-ar 
that  any  fonnal  appeal  was  taken.  If  taken,  the  ap|)<*al  may  !*<•  pn-- 
sumed  to  have  been  ha.scd  upon  the  giound  that  the  \igilance  c<yn- 
mittec  had  acted  without  jurisdiction,  so  that  the  wh(jl<'  proceed- 
ings were  void.  It  certainly  cannot  be  held  that  by  the  mere  taking 
of  an  appeal  to  the  association  he  ius.sented  to  the  jurisdiction  of 
the  very  tribunal  whose  proceedings  were  to  be  review^-d. 

To  return,  now,  to  the;  first  and  main  (juestion  raised  by  plaintiff 
in  error.  We  think  too  narrow  a  view  is  taken  of  the  plaint iflf's 
ground  of  action  when  it  is  regarded  as  resting  merely  uixjii  his 
susjKMision  from  the  lalior  union.  In  our  opinion,  the  gist  of  the 
action  is  the  damage  caused  to  the  plaintiff  by  an  unwarranted  in- 
terference with  him  in  his  employment  as  a  hatter.  If  the  framer 
of  the  declaration,  instead  of  including  in  that  pleading  averments 
respecting  the  proceedings  of  the  vigilance  committee  and  of  the 
other  defendants  that  eventuated  in  the  witlulrawal  of  the  phiin- 
tifT's  membership  card,  had  contented  himself  with  averring  that 
defendants  had  unlawfully  and  without  just  cause  or  excuse  pro- 
cured plaintiff's  discharge  by  his  employer,  it  would,  as  we  think, 
have  set  forth  the  material  averment  upon  which  his  right  of  action 
depends.  Defendants  might  then  have  pleaded  tiiat  his  discharge 
resultcnl  solely  from  the  withdrawal  of  his  membership  card,  and 
that  this  resulted  from  his  conviction  of  an  offence  against  the  rules 
of  trade,  after  a  fair  trial  had  upon  charges  submitted  by  a  memlxr 
in  writing,  and  on  due  notice  to  the  plaintiff  in  accordance  with  the 
laws  of  the  as.sociation  of  which  he  was  a  member.  Tiiis  cour.-^e  of 
pleading  would  have  presented  the  so-called  trial  and  conviction 
of  the  plaintiff  in  its  true  light,  as  an  alleged  justification  or  excu.se 
for  the  action  of  the  defendants  in  procuring  his  tlismi.ssiil  from 
employment. 

No  doubt  plaintiff's  membership  in  the  defendant  association  im- 
ports his  consent  (so  far  as  he  had  lawful  power  to  give  coasent)  to 
the  discipline  of  the  a.ssociation,  if  carried  out  in  good  faith  and 
without  malice,  through  the  methods  prescrilxnl  by  the  laws  of  the 
association  and  in  accordance  with  the  principles  of  natural  justice. 
Assuming  the  defendant  a.^.sociation  to  have  been  organized  for  law- 
ful purposes  only,  plaintiff  had  lawful  power  to  give  his  consent  to 
its  discipline,  to  be  exercised  in  furtlierance  of  such  iiur|v)ses.  .\nd, 
a.ssuming  that  the  method  adopted  by  the  defemlant  a,><.sociation 
of  establishing  an  agreement  with  the  manufacturing  hatters  in  all 
the  factories  throughout   an  extensive  district,  to  the  effect  that 


366  LEGALITY   OF   ENDS    PURSUED  [CHAP.  V 

none  but  members  of  the  association  should  be  employed  in  their 
shops,  was  not  unlawful,  the  plaintiff  might  assent  that  upon  his 
being  in  due  course  suspended  from  membership  in  the  association, 
after  a  proper  conviction  upon  charges  submitted  and  tried  in  ac- 
cordance with  its  rules,  he  should  lose  his  place  of  cmplo3'ment  and 
Jiis  opportunity  of  gaining  other  emplojTiient  within  the  district.  .  .  . 

Since  upon  the  record  before  us  it  must  be  held  that  plaintiff's 
suspension  from  the  association  and  the  consequent  withdrawal 
of  his  membership  card  were  not  warranted  by  the  laws  of  the  asso- 
ciation, because  the  tribunal  that  tried  him  acted  without  jurisdic- 
tion, it  is  unnecessary  to  pursue  the  inquiiy  whether  the  defendant 
association,  by  establishing  a  trade  agreement  that  tended  to  pro- 
mote a  monopoly  and  to  deprive  workmen  in  the  hatter's  craft  of  a 
fair  opportunity  to  obtain  employment,  had  violated  the  law  or  the 
public  policy  of  this  state.  .  .  . 

In  dealing  with  the  question  of  the  plaintiff's  right  to  recover,  it 
is  to  be  observed  that  the  action  taken  by  the  defendants  was  not 
in  the  course  of  any  legitimate  competition  for  the  place  held  by  the 
plaintiff  in  the  factory,  but  was  taken  in  order  to  discipline  and 
punish  him  for  an  offence  of  which  he  was  presimiably  innocent,  and 
of  which  he  had  not  been  duly  found  guilty.  .  .  . 

Upon  both  reason  and  authority,  therefore,  we  are  of  the  opinion 
that  the  acts  of  the  defendants  herein,  as  above  recounted,  amounted 
to  an  unwarranted  interference  with  the  plaintiff  in  his  trade  as  a 
hatter,  and  he  having  sustained  damage  as  a  result  thereof  in  losing 
his  place  of  employment  the  present  action  is  sustainable. 

The  judgment  under  review  will  be  affirmed,  with  costs.^ 

Section  8.    Strikes  and  Other  Forms  of  Collective  Action  for  Miscel- 
laneous Purposes 

REYNOLDS  v.  DAVIS 

Supreme  Judicial  Court  of  Massachusetts.     1908 

198  Mass.  294 

LoRiNG,  J.  This  is  a  bill  brought  apparently  by  the  members 
of  nine  firms  and  thirty  five  individuals,  and  purports  to  be  brought 
against  seven  unincorporated  associations  (a  building  trades  coun- 
cil and  six  local  trade  unions)  and  twenty-eight  individuals.  The 
relief  sought  is  an  injunction  restraining  the  defendants  from  in- 
terfering with  the  business  respectively  carried  on  by  the  several 

^  Accord:  Blanchard  v.  Newark  Counril,  77  N.  J.  L.  380,  affirmed  (without 
opinion)  in  78  N.  J.  L.  737.  Upon  the  question  of  the  leKaUty  of  a  strike  to  enforce 
tlic.  payment  by  a  union  member  of  a  fine  Uurfiilhi  imposed  there  seem?  to  lie 
very  little  Ameriean  authority.  The  ease  of  Willewt  &  Sons  v.  Driscoll,  200  Mass. 
110  Cfollowmc;  the  doubtful  cases  of  Houtwell  v.  Marr,  71  Vt.  1,  and  Martell  v. 
White,  185  Ma.ss.  255)  seems  ver>'  diflicult  to  defend  on  principle. 


SECT.  VIII]        STRIKES    FOR   MISCELLANEOUS   PURPOSES  307 

plaintiffs.     Tlie  place  of  business  of  each  and  all  the  plaintiffs  and 
defendants  is  in  the  city  of  Lynn. 

The  ca.se  was  sent  to  a  master  and  came  on  for  hearing  in  the 
Superior  Court  on  the  master's  report  t(j  which  no  except  ions  had 
been  taken.  A  final  decree  was  entered  directing  that  th<'  bill  Ixj 
dismis.sed  as  to  tlirce  of  the  plaintiffs  named  on  a  motion  to  that 
effect  made  by  them,  and  as  to  one  defendant  on  the  merits,  and 
restraining  the  remaining  defendants  in  certain  particulars  therein 
set  forth.  From  tliis  ilecree  the  defendants  wh(j  were  enjoined  took 
an  appeal  whi<'h  is  now  befcjre  us. 

The  princijxd  contention  of  the  defendants  is  that  on  the  facta 
set  forth  in  the  master's  report  the  bill  should  have  lx?en  dismissed. 

It  api)ears  from  the  master's  report  tiiat  before  May  1,  1906, 
"although  some  of  tluMu  [tlu;  {)laintilTs]  had  l>een  running  what  was 
practically  an  '  open  shop,'  yet  many  of  the  complainants  had  at 
least  some  sort  of  verbal  understanding,  if  not  an  actual  agreement, 
with  the  various  unions  respecting  hours,  wages,  af)i)rentices,  and 
the  eraplovinent  of  non-union  help,  wliich  would  <'.\pire  on  that 
date." 

At  some  time  not  fixed  by  the  master  the  plaintiffs  (with  the  ex- 
ception of  Keyes,  Eastman  and  Swan),  acting  with  others,  signed 
and  issued  the  following  advertisement  which  was  headed  "Lynn 
Open  Shops": 

"The  following  firms  propo.se  in  the  future  to  do  a  free  and  un- 
restricted business  under  the  following  Open  Shop  Rules,  which 
will  enable  us  to  pay  our  employees  according  to  their  merits,  and 
insure  to  the  public  a  fair  and  honest  return  for  their  money,  which 
cannot  be  done  under  the  Closed  Shop. 

"Open  Shop  Rules 

"1.  There  shall  be  no  discrimination  for  or  against  any  work- 
man on  account  of  membership  or  non -membership  in  any  organiza- 
tion. 

"2.  There  shall  be  no  restriction  as  to  the  numlier  of  apprentices 
to  be  employed  when  of  proper  age,  or  as  to  the  nature  of  the  work 
which  workmen  of  any  class  shall  do. 

"3.    That  eight  (8)  hours  shall  constitute  a  day's  work. 

"4.  Overtime  sliall  not  1k^  permitted  except  when  absolutely 
necessary,  and  under  no  circumstances  to  Iw  continued,  all  over- 
time to  be  paid  for  as  regular  time.  Sundays  and  Ix^gal  Holidays, 
or  the  days  on  whicli  the  same  are  celel)rat(Mi,  are  to  l>e  paid  for  as 
double  time. 

"5.  Grievances  arising  among  the  workmen  will  Ix'  .settled  in 
conference  between  the  employer  and  the  workmen  already  in- 
volved." 

This  advertiseuKMit  was  signed  by  twenty-nine  master  carpenters 
and  builders,  eight  master  paint(^rs  and  pafx^r  hangers,  one  ma- 
chinist   and    millwright,   six   plumlx^rs,   steamfitters   and   tinsmiths, 


368  LEGALITY    OF   ENDS   PURSUED  [CHAP.  V 

four  stairbuilders  and  dealers  in  building  supplies,  one  dealer  in 
lumber  and  "builders'  finish,"  and  thi-ee  carrying  on  the  business 
of  "Gas  and  Electrical  Construction." 

The  six  trade  unions  named  as  defendants  are  unions  of  (1)  car- 
penters, (2)  lathers,  (3)  painters,  decorators  and  paperhangers, 
(-1)  plmnbers,  (5)  sheet  metal  workers,  and  (6)  steamfitters  and 
helpers. 

On  May  1,  1906,  these  "Open  Shop  Rules"  were  posted  by  the 
plaintiffs  in  their  several  shops,  and  thereupon  the  union  men  mem- 
bers of  the  unions  named  as  defendants  left  work  with  "some" 
exceptions;  in  these  instances  the  union  men  "remained  at  work 
after  the  open  shop  rules  were  posted  and  until  a  non-union  man 
was  put  at  work  on  the  same  job  with  themselves,  when  they  im- 
mediately left.  In  one  or  two  cases  the  union  men  returned  when 
the  non-union  men  ceased  working." 

Without  going  into  details  it  is  manifest  that  the  strike  here  in 
question  was  a  strike  against  the  open  shop,  as  the  plaintiffs  pro- 
posed to  carry  on  an  open  shop,  and  for  the  closed  shop  as  it  had 
previously  been  carried  on  by  many  of  the  plaintiffs  and  by  the 
defendants. 

It  is  settled  in  this  Commonwealth  that  th£jfiggIity^f_a_com-_ 
bination  not  to  work  for  an  emploj^er,  that  is  to  say,  ^(^_a_£tj;:ike, 
depends  (in  case  the  strikers  are  not  under  contract  to  work  for  himj 
upoiTthe  purpose  for  which  the  combination  is  formed,  —  the  pur- 
pose for  which  the  employees  strike.  ...  "^ 

What,  then,  on  the  facts  found  in  the  master's  report  was  the 
purpose  of  the  strike  here  in  question? 

The  question  of  the  purpose  of  the  strike  does  not  seem  to  have 
been  directly  in  the  master's  mind  in  framing  his  report,  and  for 
that  reason  his  findings  of  fact  are  not  directed  to  this  issue.  But 
in  our  opinion  the  facts  were  abundantly  proved  which  made  the 
strike  here  in  question  an  illegal  combination,  that  is  to  say,  an  in- 
terference with  the  business  which  each  plaintiff  was  conducting, 
for  which  interference  there  was  not  a  justification. 

The  occasion  of  the  strike,  as  we  have  said,  was  the  posting  of 
the  open  shop  rules.  The  strike  was  manifestly  a  strike  against 
working  imder  those  rules.  To  understand  the  significance  of  the 
defendants'  combination  not  to  work  under  these  open  shop  rules 
it  is  necessary  to  state  what  was  proved  to  have  been  the  condition 
under  which  many  of  the  plaintiffs  had  been  conducting  their  busi- 
ness before  these  rules  were  posted. 

Most  of  the  plaintiffs  had  been  conducting  their  business  under 
an  oral  understanding,  if  not  an  actual  agreement,  with  the  defend- 
ant local  unions. 

It  appears  that  the  defendant  local  unions  were  affiliated  with 
the  Building  Trades  Council  of  Lynn  and  Vicinity,  also  named 
as  a  party  defendant.     The  Building  Trades  Council  of  Lynn  and 


SECT.  VIII]         STRIKES    FOR    MISCELLAXEOUS    PURPOSES  .'300 

Vicinity  appears  to  be  an  unincorporated  association  made  up  of 
delegates  from  the  local  unions  with  which  it  is  "affiliated,"  in- 
cludiiiji;  the  six  local  unions  named  here  as  defendants. 

By  tiic  workin}^  and  trade  rules  oi  this  council  every  grievance 
which  a  meml)er  of  a  local  union  alfiliatcd  with  the  council  has 
aj^ainst  his  employer  is  to  be  investigated  by  the  executive  board 
of  the  council,  and  if  the  employer  docs  not  comply  with  the  decision 
of  the  (executive  board  he  is  reported  to  the  council  as  "unfair," 
and  U{)on  being  declanHl  "unfair"  by  the  council  the  exe(utive 
board  is  "to  again  interview"  the  emi)loyer  an<l  if  the  emi)]oyer 
continues  in  his  refusal  to  comply  with  tlie  demands  of  the  courjcil 
the  board  "shall  at  once  remove  all  union  men"  from  his  employ, 
and  "no  union  man  shall  be  allowed  to  go  to  work"  for  him  until 
he  is  "again  placed  upon  the  fair  list  by  the  .   .  .  council." 

In  other  words,  the  members  of  the  defendant  unions,  by  the 
terms  of  their  own  rules  undertook  to  decide  each  case  of  an  indi- 
vidual grievance  Ix'twecn  a  single  employee  and  his  employer,  to 
decide  what  sliould  i)e  done  by  the  employer  as  well  as  l)v  the  em- 
ployee, and  to  enforce  comi)liance  with  its  decision  l)y  threatening 
and  instituting  a  strike  in  which  all  members  were  bound  to  join. 
What  we  mean  by  an  individual  grievance  is  (for  example)  the  dis- 
charge by  his  employer  of  a  member  of  the  union  for  drunkenness 
or  inefficiency. 

This  statement  of  the  make-up  of  the  defendant  unions  and  the 
Trades  Council  with  which  they  are  affiliated  makes  j)lain  what 
the  plaintiffs  were  aiming  at  in  the  open  shop  rules.  And  it  also 
makes  plain  what  was  th(>  main  or  one  of  the  main  purposes  for 
wliich  the  strike  in  question  was  instituted  by  the  individual  de- 
fendants. 

The  strike  in  question  was  a  combination  for  the  purpose  of  mak- 
ing the  Trades  Council,  composed  of  delegates  from  the  unions  of 
which  the  indivitlual  definidants  are  memlx^rs,  the  arbiter  of  all 
(questions  between  individual  employees  and  their  employers. 

It  purports  to   include  questions  arising  under  contracts  still  in 
existence  between  the  two.     To  force  the  employer  to  submit  to  a  ^ 
delegate  body  of  employ(>es  his  rights  under  an  existing  contract     J 
by  a  coml)ination  for  tiiat  purpose  is  not  a  justifiable  interference  J 
with  their  employer's  business. 

And  in  cases  arising  outside  existing  contracts  it  is  an  attempt 
to  force  compliance  on  the  part  of  employers  with  the  decision  of 
this  delegate  body  of  employees  as  to  whether  a  single  employee 
is  or  is  not  to  work  for  the  employer,  which  decision  is  to  Ih'  en- 
forced by  a  strike.  Such  a  strike  would  be  a  strike  in  the  nature 
of  a  sympathetic  strike,  that  is  to  say,  it  is  a  strike  not  to  for\vard 
the  common  interests  of  the  .strikers  but  to  forward  the  interests 
of  an  individual  (Muployee  in  respect  to  a  grievance  l)etween  himj 
and  his  employer  where  no  contract  of  employment  exists?. 


370  LEGALITY   OF   ENDS   PURSUED  [CHAP.  V 

We  do  not  mean  to  say  that  a  labor  union  cannot  combine  to 
support  a  committee  to  take  up  individual  grievances  in  behalf  of 
the  several  members.  What  we  now  decide  to  be  illegal  is  a  com- 
bination that  such  grievances  (that  is  to  say,  grievances  between 
an  individual  member  of  a  union  and  his  emploj^er  which  are  not 
common  to  the  union  members  as  a  class)  shall  be  decided  by  the 
employees  and  that  decision  enforced  by  a  strike  on  the  part  of  all. 
In  this  respect  this  case  comes  within  the  principle  upon  which  the 
second  point  in  Pickett  v.  W^alsh,  192  Mass.  572,  was  decided.  See 
p.  587  el  seq. 

It  follows  that  the  plaintiffs  were  entitled  to  an  injunction  restrain- 
ing the  defendants  from  combining  together  to  further  the  strike 
in  question,  and  from  doing  any  acts  whatever,  peaceful  or  other- 
wise, in  furtherance  thereof,  including  the  payment  of  strike  benefits 
and  putting  the  plaintiffs  on  an  unfair  list. 

The  Building  Trades  Council  and  the  six  unions  were  not  properly 
joined  as  parties  defendant  as  unincorporated  associations,  Pickett 
V.  Walsh,  192  Mass.  572,  and  they  should  be  stricken  from  the  title 
of  the  cause.  ...  So  ordered. 

Knowlton,  C.  J.  The  opinion  agreed  to  by  a  majority  of  the 
court  in  this  case,  seems  to  me  erroneous  in  the  grounds  on  which 
it  purports  to  rest,  and,  if  it  should  pass  without  comment,  it  would 
be,  in  my  judgment,  misleading.  To  most  of  the  doctrines  stated 
in  it  I  heartily  agree.  With  the  final  disposition  of  the  case  I  am 
satisfied.  If  the  decision  were  put  on  the  ground  that  the  strike  was 
for  a  closed  shop  in  the  sense  that  the  shop  should  be  closed  ar- 
bitrarily to  all  workmen  not  mcml)ers  of  the  union,  not  because  such 
workmen  were  personally  objectionable  in  any  particular,  nor  be- 
cause there  was  not  work  enough  for  all  the  members  of  the  union 
if  non-union  men  were  employed,  but  to  compel  all  workmen  to 
join  the  union  for  the  purpose  of  creating  a  monopoly  in  the  labor 
market,  whereby  to  be  able  to  contend  successfully  with  employers 
whenever  a  controversy  should  arise,  I  should  cheerfully  concur  in 
it.  A  strike  to  compel  a  closed  shop,  merely  to  accomplish  such  a 
purpose,  would  not  ho  justifiable  on  principles  of  competition,  either 
as  against  non-union  workmen  or  as  against  the  employer,  but  would 
be  unlawful  for  reasons  stated  in  Berry  v.  Donovan,  188  Mass.  353, 
^Plant  V.  Woods,  176  Mass.  492,  and  Pickett  v.  Walsh,  192  Mass.  572. 

This  opinion  enters  a  field  which  has  not  been  very  much  trav- 
ersed by  the  courts.  It  holds  this  strike  unlawful  because  of  the 
rules  and  by-laws  of  the  labor  union.  Rules  and  by-laws  of  labor 
unions  have  not  commonly  received  the  animadversion  of  the  courts, 
because,  as  regulations  for  the  internal  admitiistration  of  the  af- 
fairs of  organizations  established  for  a  lawful  purpose;,  they  are 
usually  designed,  in  a  reasonable  way,  to  promote  the  objects  of  the 
organization. 


SECT.  VIII]        STRIKES    FOR   MISCELLANEOUS   PURPOSES  371 

It  is  held  universally  in  law,  and  is  coriccdccl  Kf'"<'rally  in  i)ul)lic 
opinion,  tiiat  a  labor  union,  (-staljlishcd  for  the  promotion  <»f  the 
intcrcjsts  of  its  nicnilx'is  in  a  rcasonalijc  way,  is  a  justifiable  and 
coiimiendable  organization. 

It  is  right  that  all  the  members  of  such  a  union  should  unite  for 
the  protection  of  the  interests  of  every  individual  nieinlH-r.  If  the 
feeblest  of  its  meinlH'rs  has  a  just  grievance  as  an  fniployei-  against 
their  common  employer,  it  is  projXT  that  the  whole  combination 
should  act  together  to  obtain  redress  of  the  wrong.  Tlie  most  ef- 
fectual way  of  enforcing  the  right  of  every  memlx-r  to  just  treatment 
from  his  employer,  in  reference  to  wages,  hours  of  labor  and  other 
things  alTecting  his  interests,  is  by  withiiolding  the  lal)or  of  the 
union  until  justice  is  done.  To  make  this  a  potx-nt  inducement  the 
union  must  be  able  to  act  as  one  body,  and  to  hold  every  memlx-r  to 
the  performance  of  his  duties  to  his  fellow  members,  so  that  all  may 
Ix?  a  unit<'d  force.  Of  course  there  must  be  a  method  of  determining 
what  action,  if  anj'-,  shall  be  taken  by  the  union  in  any  ca.se  of  an 
alleged  grievance.  Such  a  determination  cannot  properly  \yc  made 
without  an  investigation  of  the  facts.  Such  an  investigation  or- 
dinarily would  involve  conferences  with  the  employer,  and  negotia- 
tions to  see  whether  he  would  consent  to  an  improvement  of  the 
conditions,  if  they  should  appear  to  be  unjust  to  the  emi)loyee.  Such 
conferences  and  negotiations,  without  which  ordinarily  no  labor  union 
would  be  justified  in  striking,  call  for  a  representative  or  representa- 
tives of  the  union  to  present  its  side  of  the  controversy  to  the  em- 
ployer, and  to  act  for  the  union  in  the  maintenai»ce  of  its  interests 
against  the  opposite  party.  In  such  cases  the  employer  and  em- 
ployee often  come  together  as  adverse  parties,  each  contending  for 
that  which  seems  for  his  advantage.  The  final  determination  of  the 
position  to  be  taken  by  the  union  may  l)e  by  a  vote  of  its  members. 
It  may  be  by  the  action  of  a  board  of  officers  to  whom  the  union 
intrusts  this  duty.  In  favor  of  the  latter  method  is  the  fact  that, 
in  times  of  excitement,  assemblies  of  men  and  women  often  act 
hastily  under  a  misappr<>hension  of  the  facts,  and  imder  an  impulse 
of  passion  aroused  by  inflanunatory  appeals  to  their  feelings.  Hut, 
in  one  way  or  another,  such  determinations  must  be  made,  and 
must  be  treated  as  finally  settling  the  position  which  the  union  is 
to  take  for  itself,  as  a  party  dealing  with  an  adverse  party  in  refer- 
ence to  its  su[)pose(l  rights.  Of  course,  if  the  empl(\ver  takes  a  dif- 
ferent view,  neither  is  bound  by  the  action  of  the  other,  and  each 
may  make  any  lawful  effort  to  prevail  in  the  contest  with  the  other. 

In  the  opinion  the  present  strike  is  condemned  V>ecau.se  of  the 
rules  which  govern  tlK>  union.  I'ndcM-  these,  every  grievance  is  to 
be  investigated  by  the  executive  i)oard  of  the  council.  Surely  this 
is  right  and  proper.  If  the  employer  refascs  to  do  that  which  the 
executive  board  thinks  he  ought  to  do,  the  facts  are  reported  by 
the  board  to  tiie  next   meeting  of  the  building  trades  council,  with 


372  LEGALITY   OF   ENDS   PURSUED  [CHAP.  V 

a  recommendation  that  he  be  declared  unfah*.  If  he  is  then  declared 
imfair  by  the  building  trades  council,  that  is  equivalent  to  a  decision 
that  he  is  in  the  wrong.  It  is  then  the  duty  of  the  executive  board 
to  again  interview  the  employer,  and  if  he  fails  to  comply  with  the 
conditions  that  the  building  trades  council  deems  just,  a  strike  is  to 
be  declared  and  maintained  by  the  union  until  he  complies  with  these 
conditions. 

It  is  to  be  noticed  that  this  course  of  proceeding  is  entirely  for 
the  guidance  of  the  members  of  the  union.  The  employer  takes 
such  measures  and  acts  upon  such  principles  as  he  chooses  for  his 
own  guidance.  If  the  result  is  a  failure  to  agree,  then  each  stands 
upon  his  rights,  and  it  is  a  question  which  can  force  the  other  to 
yield,  or  how  they  can  afterwards  reach  a  compromise.  The  trades 
council  is  no  more  the  arbiter  of  questions  between  individual  em- 
ployees and  their  employers  than  the  employer  is.  The  trades  coun- 
cil, as  a  representative  official  board,  decides  for  one  party  and 
determines  its  action,  and  the  employer  decides  for  the  other  party 
and  determines  his  action.  Neither  assumes  to  determine  anything 
for  the  other,  but  the  action  of  each  is  governed  by  his  or  its  own 
determination. 

I  do  not  see  how  any  rule  can  be  more  just  and  proper  for  the 
guidance  of  a  labor  union  when  a  dispute  arises  between  its  mem- 
bers, or  any  one  of  its  members,  and  the  employer.  Suppose  the 
case  is  a  reduction  of  wages  by  the  employer  which  the  members 
of  the  union  deem  unjust.  What  more  fair  or  equitable  method 
of  dealing  with  such  a  supposed  injustice  could  be  devised?  To 
say  that  a  strike  founded  on  such  a  reduction  is  illegal  because  of 
a  rule  providing  this  method  of  dealing  with  the  grievance,  is,  in 
my  judgment,  equivalent  to  saying  that  no  labor  union  shall  be 
permitted  to  do  anything  to  promote  the  proper  objects  of  its  or- 
ganization. .  .  . 

I  find  nothing  in  this  part  of  the  rules  and  by-laws  except  that 
which  I  should  expect  to  find  in  those  of  any  well-organized  labor 
union.  I  discover  nothing  in  the  master's  report  or  the  evidence 
to  indicate  that  these  rules  were  intended  to  be  used  for  the  un- 
lawful promotion  of  a  purely  sympathetic  strike,  or  that  they  ever 
were  so  used.  I  have  endeavored  to  show  that  if  any  member  of 
a  union  should  have  a  grievance  as  an  employee  against  his  em- 
ployer, even  if  it  was  not  common  to  members  of  the  union  as  a 
class,  it  would  be  the  duty  of  his  fellow-members,  in  accordance 
with  fundamental  principles  of  labor  unionism,  to  unite  for  the 
redress  of  the  grievance,  even  by  striking,  if  that  should  be  neces- 
sary. 

So  far  as  appears,  the  posting  and  pul)lioation  of  the  open  shop 
rules,  and  the  employment  or  attempt  at  employment  of  non-union 
men,  which  were  the  only  matters  complained  of  by  the  defendants, 
had  a  relation  to  members  of  each  of  the  local  unions  before  the 


SECT.  VIII]        STUIKES    FOR   xMISCELLAXEOUS    PURPOSES  373 

court,  as  direct  a.s  it  hud  t(j  any  other  union  mon.  Moinlx'rs  of  those 
unions  were  employed  in  the  shops  of  the  phiintifTs.  If  the  ground 
of  complaint  had  been  a  projK'r  subject  for  advei-se  action  by  an 
individual  vvoikman,  it  windd  have  U'en  a  projx'r  sul)ject  f<jr  in- 
vestigation and  action  by  the  union  of  which  he  wils  a  meml)er. 

Because  the  opinion  in  this  case  makes  the  decision  turn  upon 
the  rules  and  by-laws  to  which  I  have  referred,  I  do  not  agree  with 
it.' 

MINASIAN  V.  OSBORNE 
Supreme  Judicial  Court  of  Massachusetts.     lUll 

210  Mass.  250 

Two  BILLS  IN  equity,  filed  on  December  23,  1910,  the  plaintiff  in 
the  first  case  being  the  father  of  the  plaintiff  in  the  second  case,  and 
the  defendants  in  both  cases  being  representatives  and  memlx-rs 
of  the  Lasters'  Union  Local  No.  1,  an  unincorporated  association, 
alleging  the  facts  which  are  stated  in  the  opinion,  and  praying  for 
an  injunction  restraining  the  defendants  from  maintaining  a  strike 
of  the  persons  who  before  such  strike  were  employed  as  lasters  by 
the  Ilandall  Adams  Co.,  a  corporation,  in  its  boot  and  shoe  factory 
at  Lynn,  for  the  purpose  of  compelling  or  inducing  the  Randall 
Adams  Co.  to  cau.se  Minas  H.  Minasian,  the  plaintiff  in  the  second 
case,  who  was  emploj'-ed  as  a  laster  by  the  Randall  Adams  Co.,  to 
discharge  from  his  employment  as  a  helper  Ilampartzoon  Minasian, 
the  plaintiff  in  the  first  ca.se,  also  praying  for  damages  and  for  further 
relief. 

In  the  Superior  Court  the  cases  were  heard  together  by  Hitch- 
cock, J.,  who,  with  a  recital  that  the  pleadings  were  substantially 
the  same  and  the  facts  identical  in  the  two  cases,  made  a  memo- 
randum of  findings  applicable  to  both  ca.ses,  in  which  he  found  the 
facts  which  are  stated  in  the  opinion.  The  judge  made  an  order 
that  the  plaintiffs  were  severally  entitled  to  an  injunction  as  prayed 
for  and  to  damages  and  costs.  In  each  of  the  ca.ses  a  final  decree 
was  entered  in  accordance  with  this  order,  and  in  each  case  the  de- 
fendants appealed. 

RuGG,  C.  J.  The  material  facts  which  give  rise  to  this  controversy 
(as  found  by  tlie  judge  of  the  Superior  Court)  are  that  the  plaintiff 
Minas,  a  skill(Ml  laster  by  trade,  had  a  contract  for  lal)or  as  a  laster 
with  the  Randall  Adams  Co.,  terminable  at  the  will  of  either.  With 
the  con.sent  of  his  employer,  he  had  in  turn  employed  as  helper  his 
father,  Hampartzoon,  the  other  plaintiff,  who  was  not  able  to  do  all 
the  work  of  a  laster,  and  who  received  no  wages  from  the  Randall 
Adams  Co.  and  had  no  relation  as  servant  to  it.    The  work  wjus  piece 

*  Compare:  State  i-.  Stockford,  77  Conn.  227  (strike  and  other  fornw  of  action 
to  oumpol  employers  to  si^n  a  tnido  HKreeinent);  Snow  v.  Wlu'eler,  113  Mtuss. 
179,  Kuprn,  pa^e  80  flegality  of  aRreemont  among  union  employees  not  to  teach 
others  their  trade  unles.s  by  consent  of  the  union). 


374  LEGALITY   OF   ENDS   PURSUED  [CHAP.  V 

work,  and  Minas  alone  received,  and  was  entitled  to  receive,  the 
compensation  for  their  joint  labor.  This  method  of  work  was  known 
in  the  craft  as  "contract"  or  "cross-handed." 

Both  of  the  plaintiffs  were,  or  had  been,  members  of  the  Lasters* 
Union,  an  unincorporated  association,  of  which  the  defendants  are 
representatives  and  members.  The  defendant  Osborne,  who  is  the 
business  agent  of  the  Lasters'  Union  Local  No.  1,  notified  the  em- 
ployer, the  Randall  Adams  Co.,  that  unless  the  father  was  discharged 
the  shop's  crew  would  be  "pulled  out."  The  father  did  not  work  for 
a  day  or  two,  but  returned  to  work  after  the  superintendent  of  the 
employer  told  the  son,  Minas,  to  get  him  and  put  him  to  work  again. 
The  next  day  all  the  other  lasters  went  out  on  an  orderly  strike, 
which  was  indorsed  by  the  Union.  As  a  consequence,  both  plain- 
tiffs have  lost  their  employment.  The  Lasters'  Union  substantially 
controls  the  labor  market  in  the  manufacture  of  shoes,  for  practically 
all  lasters  are  members  of  the  L^nion.  The  effect  of  the  strike,  if 
continued,  will  be  to  prevent  Randall  Adams  Co.  from  continuing 
business  unless  it  discharges  Minas  or  compels  him  to  dispense  with 
his  assistant. 
/  Here  is  a  plain  and  tangible  injury  to  the  plaintiffs  as  the  prox- 
imate result  of  the  acts  of  the  defendants.  This  gives  a  cause  of 
action  to  the  plaintiffs  unless  the  defendants  have  a  sufficient  jus- 
tification for  their  conduct.  If  they  have  acted  without  good  cause 
or  excuse,  they  are  liable.  Berry  v.  Donovan,  188  Mass.  353,  356. 
Quinn  v.  Leathern,  [1901]  A.  C.  495,  510.  South  Wales  Miners'  Fed- 
eration V.  Glamorgan  Coal  Co.,  [1905]  A.  C.  239,  244,  246,  251.  As 
was  said  in  DeMinico  v.  Craig,  207  ]\Iass.  593,  at  598,  "Whether  the 
purpose  for  which  a  strike  is  instituted  is  or  is  not  a  legal  justifica- 
tion for  it,  is  a  question  of  law  to  be  decided  by  the  court." 

The  inquiry  must  be  directed  to  the  character  of  the  justification 
proffered  by  the  defendants  in  excuse  for  their  conduct.  The  pur- 
pose of  the  strike  (as  found  by  the  Superior  Court)  was  "to  com- 
pel the  plaintiff  Minas  ...  to  cease  employing  his  father  to  help 
him  and  to  induce  the  emploj^cr  of  IVIinas  either  to  discharge  the 
father  or  to  require  Minas  to  cease  employing  a  helper,  or,  failing 
that,  to  discharge  ]\Iinas  from  its  employment."  But  it  has  been 
foimd  also  that  the  defendants  arc  not  actuated  by  any  ill  feeling 
toward  either  of  the  plaintiffs,  and  that  the  strike  is  wholly  dis- 
connected with  any  question  of  membership  in  the  Union,  The 
basis  of  the  strike  is  objection  to  the  system  known  as  contract  labor 
or  cross-hand  work.  It  follows  that  the  real  purpose  of  the  strike 
is  to  cause  the  abolition  of  that  system  of  work  in  this  shop. 

It  is  not  of  much  consequence  whether  the  object  of  the  strike 
is  stated  to  be  the  discharge;  of  the  father  and  son  without  hostility 
toward  them,  but  for  the  reason  that  they  practise  a  certain  system 
of  shop  labor,  or  the  abolition  of  the  systcMu  of  shop  labor,  with  tlie 
incidental  result  that  one  or  both  of  the;  plaintiffs  may  be  discharged. 


SECT.  VIII]         STRIKES    FOK    MISCELLANEOUS    PURPOSES  375 

In  its  practical  effocts  upon  the  rights  of  the  parties,  the  question 
of  law  involved  is  the  same  whichev<'r  way  it  is  put. 

The  (juestion  presented  for  decision  is  whether  tiie  alx)lition  of 
this  particular  system  of  shoj)  work  is  a  legal  justificati(jn  for  the 
interference  with  the  rights  of  these  plaintiffs  which  arises  from  an 
orderly  strike  by  fellow  employees. 

"The  objection  to  the  system  is,"  as  found  l)y  the  tri.il  judge, 
"that  where  two  men  worked  together,  as  Minas  and  his  fatln-r 
were  doing,  they  can  do  more  work  in  a  day  or  a  week  than  any 
single  man  working  without  a  helper,  and  that  as  a  result  the  men 
who  worked  without  helpers  would  not  get  their  fair  share  of  the 
work  that  was  to  be  done,  and  would  thus  be  unal>le  to  have  a  chance 
to  earn  as  much  as  they  could  if  there  were  no  IicIikts  <'mployed. 
The  custom  in  t\w  factory  was  that  when  a  Ulster  had  complet<'d 
his  case  of  shoes  or  had  nearly  completed  it  so  as  to  be  ready  for  an- 
other case,  he  would  put  his  name  upon  a  list,  and  it  was  understood 
that  <'ases  of  shoes  would  be  furnished  him  for  his  work  in  the  order 
in  which  the  names  stood  upon  tiie  list.  If  there  w:us  plenty  of  work 
so  tiiat  any  laster  could  have  all  he  could  do,  the  fact  that  two  men 
working  together  could  do  more  than  he  could  would  not  affect  the 
wages  he  woukl  ordinarily  receive;  but  in  case  there  was  a  .scarcity 
of  work,  or  not  sufficient  work  to  k(*ep  all  the  lasters  employed,  the 
laster  who  had  a  helper  might  be  able  to  do  more  work  and  other 
lasters  might  not  be  able  to  obtain  work.  In  that  aspect  of  the 
case  their  compensation  might  be  affected  !)>■  the  sj''st<?m  of  con- 
tract labor  or  cross-hand  work."  The  controversy  as  presented 
upon  this  record  is  not  Ix^tween  employ<'r  and  employee,  but  l)e- 
tween  rival  sets  of  workmen,  both  of  whom  were  at  woik  in  the 
same  shop  upon  materials  of  one  manufacturer. 

This  is  not  a  strike  which  involves  any  inquiry  as  to  the  plain- 
tiffs' habits,  conduct  or  character  which  might  render  th<'m  unfit 
or  improper  shopmates.  It  is  not  for  the  establishment  of  any  sys- 
tem of  shop  work  or  rules  directed  to  the  curtailment  or  limitation 
of  production  or  int(M-ference  with  reasonable  industrial  advance- 
ment. It  is  not  aimed  to  prevent  the  highest  efhciency  of  laltor  or 
the  use  of  modern  or  economical  machinery.  It  was  not  instituted 
to  promote  a  closed  shop  or  to  compel  anybody  to  join  or  to  leave 
any  union,  nor  primarily  to  cause  the  discharge  or  emplojTiient  of 
any  j^erson  or  class  of  persons.  If  this  results  in  any  instance,  it  is 
incidental  and  not  essential  to  the  chief  end.  It  does  not  go  to  the 
extent  of  interdicting  the  absolute  and  un(}ualified  right  of  the  in- 
dividual to  work,  if  he  desires,  contrary  to  the  will  or  rules  of  a  com- 
bination. It  is  not  based  upon  obj(>ctions  to  shop  rules  estal»lished 
for  the  re:usonal)le  protection  of  the  rights  of  th(>  employer  or  pro- 
motion of  the  good  order  or  economical  and  eflicient  service^  of  <'m- 
ployees.  It  is  not  directed  against  the  education  of  apprentices  or 
those  who  are  trving  to  learn  the  trade.     It  does  not  apfvar  to  Ixj 


376  LEGALITY   OF   ENDS   PURSUED  [CHAP.  V 

for  the  establishment  or  preservation  of  a  monopoly,  and  this  is 
not  indicated  by  the  framework  of  the  bill.  It  is  not  directed  against 
piece  work  as  distinguished  from  day  work,  nor  against  any  other 
method  of  employment  where  superior  skill,  dexterity  or  swiftness 
secures  commensurately  higher  rewards  than  inefficiency,  careless- 
ness or  slothfulness.  It  does  not  directly  or  immediatel}^  affect  the 
general  convenience,  necessities  or  safety  of  the  public.  Its  ostensible 
object  is  not  used  as  a  mask  for  any  ulterior  design.  The  direct  and 
main  purpose  is  to  secure  a  change  nn  a  system  of  work  which  is 
asserted  to  be  unjust  in  its  practical  operation. 

It  is  contended  that  this  system  in  its  final  analysis  resulted  in 
an  unequal  distribution  of  the  work  of  lasting  in  slack  times  and 
thus  affected  the  wages  of  the  strikers,  although  it  did  not  so  operate 
when  there  was  work  enough  to  keep  all  the  employees  busy  all  the 
time.  The  finding  of  the  Superior  Court  was  in  substance  to  this 
effect  and  it  is  supported  by  evidence.  There  is  nothing  to  indicate 
that  the  strike  was  not  undertaken  in  good  faith  against  this  system. 
An  honest  effort  to  better  conditions  of  employment  by  laborers  is 
lawful.  The  right  of  the  plaintiffs  to  work  upon  such  terms  as  they 
chose  is  incident  to  the  freedom  of  the  individual.  That  "right  .  .  . 
could  not  be  taken  away  ...  or  interfered  with  by  the  defendants 
unless  it  came  into  conflict  with  an  equal  or  superior  right  of  theirs." 
DeMinico  v.  Craig,  207  Mass.  593,  599.  The  right  of  one  person  to 
dispose  of  his  labor  freely  is  not  superior  to  the  same  rights  in  others. 
The  right  of  one  to  work  under  unsanitary  conditions  does  not  go 
to  the  extent  of  preventing  others  from  striking  in  order  to  secure 
a  mitigation  of  these  conditions  merely  because  such  a  strike  may 
interfere  with  the  desire  of  the  first  to  continue  to  work  under  those 
conditions.  The  same  principle  applies  where  a  distribution  of  work 
discriminates  between  men  of  average  capacity  and  gives  an  undue 
preference  to  one  over  another  in  times  when  there  is  a  dearth  of 
work.  A  system  of  giving  out  work  which,  under  existing  condi- 
tions, operates  unjustly,  is  a  condition  of  employment  in  which  all 
workmen  affected  by  it  in  a  particular  shop  may  have  a  legal  interest. 
Nor  is  injury  to  the  employer  a  reason  why  a  strike  to  remedy  such 
a  condition  should  be  enjoined. 

The  right  of  the  employer  is  no  more  absolute  in  respect  of  a  con- 
dition of  employment  like  this  than  it  is  as  to  hours  of  labor  or  rate 
of  wages.  It  is  not  a  subject  as  to  which  he  is  entitled  to  special 
protection  against  an  orderly  and  ofhorwise  lawful  strike.  Pickett 
V.  Walsh,  192  Mass.  572.  The  conduct  of  these  defendants,  although 
directly  affecting  to  their  detriment  the  labor  habits  of  the  plain- 
tiffs, appears  to  have  sufficient  justification  in  the  fact  that  it  is  of  a 
kincl  and  for  a  purpose,  which  has  a  direct  relation  to  the  benefits 
of  a  more  uniform  distril)ution  of  work,  and  thus  of  wages  among 
equally  skilled  or  competent  workmen  during  dull  seasons.  This 
was  the  object  which  the  defendants  were  trying  to  obtain. 


SECT.  VIII]        STRIKES    FOR   MISCELL.\NEOUS   PURPOSES  377 

While  the  plaintiffs'  contractual  rights  to  hilwjr,  although  tenui- 
naVjIo  at  will,  were  entitled  to  protection  against  wanton  interfer- 
ence (Citizens  Loan  Association  v.  Boston  &  Maine  Ilailroad,  196 
Mass.  528,  and  cases  cited),  they  were  not  so  assured  or  valuable  in 
their  nature  as  are  valid  contracts  f(jr  continued  service  for  a  definite 
period.  It  may  well  \ni  tliat  a  stronger  reason  might  Ix*  ne<*ded  to 
justify  interference  with  such  contracts  than  with  thoBC  here  in 
question.    We  do  not  go  beyond  what  is  necessary  to  this  decision. 

The  decision  of  this  case  dei)ends  ui)on  a  somewhat  narrow  in- 
t<>ri)retation  of  the  findings  of  the  trial  court,  ('(jnstruing  them  liS) 
we  do,  this  seems  to  he  a  clash  of  e(}ual  rights  Ix'tween  fellow  lalxjrers,  I 
where  each  could  use  any  lawful  means  to  enforce  those  rights.  No 
question  is  presented  as  to  the  unlawfulness  of  the  means  employed. 
This  is  not  a  case  in  its  facts  like  those  presented  for  adjudication 
in  Plant  v.  Wootls,  17ti  Ma.ss.  492;  \'egelahn  v.  (luntner,  1()7  Mass. 
92;  Walker  v.  Cronin,  107  Mass.  555;  Carew  v.  Rutherford,  106 
Mass.  1;  Sherry  v.  Perkins,  147  Mass.  212;  Berry  v.  Donovan,  188 
Mass.  353;  Reynolds  v.  Davis,  198  Mass.  294;  L.  D.  Willcutt  & 
Sons  Co.  V.  Driscoll,  200  Mass.  110;  DeMinico  v.  Craig,  207  Ma.ss. 
593;  Folsom  v.  Ix^wis,  208  Mass.  33G;  hut  it  comes  within  principles 
recognized  and  stated  in  several  of  those  cases  and  applied  in  Pickett 
V.  Walsh,  192  Mass.  572,  at  579  et  seg.  In  the  opinion  of  a  majority 
of  the  court  the  entry  in  each  case  must  be 

Decree  reversed:  bill  dismissed. 

WALTON  LUNCH  CO.  v.  KEARNEY 

Supreme  Judicial  Court  of  IVIassachusetts.     1920 

236  Mass.  310 

Bill  in  equity,  filed  in  the  Supreme  Judicial  Court  on  September 
12,  1919,  seeking  to  enjoin  certain  named  individuals  and  the  "offi- 
cers and  members  of  a  certain  voluntary  unincorporated  associa- 
tion known  as  the  Hotel  and  Restaurant  Employees'  International 
Alliance  Union,  Local  No.  34,"  from  interfering  with  the  business 
of  the  plaintiff.  .  .  . 

RuGG,  C.  J.*  This  is  a  suit  in  equity  by  a  corporation  engaged 
in  the  restaurant  business  in  Boston  against  named  defendants 
as  "officers  and  members  of  a  certain  voluntary  unincor|X)rated 
association  known  as  the  Hotel  and  Restaurant  Employees'  In- 
ternational Alliance  Union,  Local  No.  34."  The  case  was  tried 
i)efore  a  single  justice,  who  entered  a  final  decree  in  favor  of  the 
plaintiff.  This  decree  was  simply  one  of  |X'rp(>tual  injunction  against 
certain  acts  and  conduct.  It  did  not  declare  whi^tluT  the  strike 
was  legal  or  illegal.     The  plaintiff  ap|)eale(l  and  re(iuest<»d  a  report 

1  Onlv  that  part  of  tho  opinion  dealing  with  the  loRahtv  of  the  strike  is  piven. 
—  Ed. 


378  LEGALITY   OF   ENDS    PURSUED  [CHAP.  V 

of  the  material  facts.  R.  L.  c.  159,  sec.  23.  In  response  to  that 
request  the  single  justice  foimd  that  the  strike  was  legal.  A  sum- 
mary statement  of  the  facts  respecting  that  point  is  that  in  August, 
1919,  representatives  of  employees  of  the  plaintiff  sent  to  it  for 
consideration  a  form  of  agreement,  which  if  accepted  would  have 
estabhshed  the  principles  of  an  absolute  closed  shop  and  which  con- 
tained other  provisions  designed  to  effect  changes  in  working  con- 
ditions of  its  employees.  On  September  2,  1919,  representatives  of 
the  employees  and  of  the  plaintiff  met  at  the  office  of  the  latter  and 
talked  over  the  situation  for  about  two  hours.  "At  the  conclusion 
of  the  discussion  Mr.  Walton  [one  of  the  representatives  of  the  plain- 
tiff] stated  that  the  closed  shop  clause  was  important;  that  it  was  a 
change  of  policy,  and  that  he  wished  time  to  think  it  over."  It  was 
then  agreed  that  the  conference  should  be  renewed  at  the  same 
place  at  a  later  specified  time.  At  that  time  and  place  Walton,  al- 
though in  his  office,  "concealed  that  fact  from  those  in  charge  of  the 
office  and  from  the  representatives  [of  the  employees]  whom  he  had 
agreed  to  meet  there." 

The  finding  that  this  was  the  cause  of  the  strike  cannot  be  over- 
turned. The  evidence  is  not  reported.  It  is  not  inconsistent  with 
other  facts  found.    Upon  familiar  principles  it  must  stand. 

The  ruling  that  a  strike_for  thjs^i;ause_w^s_|ustifiabb  was  righi.. 
ThiTTs  not  a  case  of  a  mere  refusal  to  meet  employees  for  discus- 
sion of  demands  for  change  of  wages  or  working  conditions.  It  is 
not  a  declination  to  confer  with  strangers  about  the  subject.  It  is  a 
plain  case  of  a  breach  of  good  faith  and  of  square  dealing  betweeiT 
man  and  man  by  intentionally  failing  without  apparent  excuse  and 
without  notice  to  keep  an  engagement  deliberatelj^  made  for  further 
consultation  touching  their  contractual  relations  with  each  other. 
It  does  not  appear  that  the  strike  was  in  violation  of  the  terms  of 
any  contract  between  the  plaintiff  and  its  employees.^  .  .  . 


MECHANICS  FOUNDRY  &  MACHINE  CO.  v.  LYNCH 

Supreme  Judicial  Court  of  Massachusetts.     1920 

236  Mass.  504 

Bill  in  equity,  filed  in  the  Superior  Court  on  March  13,  1920, 
against  four  officers  and  twenty-six  other  members  of  the  Inter- 
national Moulders'  Union  No.  48,  who  on  March  2,  1920,  were  em- 
ployed by  the  plaintiff,  to  enjoin  a  strike.   .  .   . 

Carroll,  J.  T\\v  master  found  that  thirty  employees  of  the 
plaintiff,  named  in  the  second  paragra}:)h  of  his  report,  refused  to 
work  and  struck.     On  February  20  and  21,  there  was  a  discussion 

1  Acccrrd:  Rhodes  Bros.  Co.  v.  Musicians'  Protective  Union,  37  R.  I.  281 
(by-law  of  niu.sicians'  union  forl)i(l<liii^r  niomhers  to  play  for  the  proprietor  of 
any  theatre  who  has  lirokcn  a  contract  with  a  nieinhcr  or  members  of  the  union). 


SECT.  VIII]        STRIKES    FOR   MISCELLAXEOUS    PURPOSES  379 

between  the  plaintiff's  manager  and  the  employees  concerning  shop 
conditions,  in  which  discussion  Cornelius  Lynch,  an  employee,  took 
an  important  part.  He  also  found  that  Lynch  and  the  manager 
"became  jx-rsonal."  The  sliop  conditions  were  siitisfaciorily  ad- 
justed and  all  the  employees  except  Lynch  returned  to  work  on 
February  23.  On  March  2,  when  Lynch  came  to  the  f<iundry.  he 
was  discharged  "Ix'cause  of  his  attitude  on  February  20  and  21"; 
and  thereupon  the  defendants  struck  Ix'cause  Lynch  was  not  given 
employment.  There  has  been  no  "picketing,  b(n'c<jtting  or  other 
acts  or  proceedings,  other  than  that  the  moulders  <'mploved  by  the 
plaintiff  remained  away  from  their  work."  The  bill  was  brought 
to  restrain  the  defendants  from  continuing  the  strike,  to  i)revent 
them  from  interfering  with  the  plaint ifT's  j)usiness  and  its  emi)loyees, 
and  from  paying  mone}'  to  the  appn'iitices  in  the  plaint  ifT's  emjiloy, 
or  to  any  other  person,  as  an  inducment  to  remain  out,  or  to  quit 
the  plaintifT's  employment.  A  decrj^c -wa&^civt^red  in  favor  of  the 
plaintiff.  Tiie  form  of  the  decree  is  not  questioned  and  we  do  not 
consider  it.  The  only  issue  before  us  on  this  appeal  is  whetiuT  a 
strike  to  comix-l  the  plaintiff  to  employ  a  di.schargeti  workman  is  a 
lawful  strike. 

Every  person  has  a  legal  right  to  dispo.se  of  his  own  labor  as  he 
wishes,  and  to  work  for  wiiom  he  pleases.  He  may  refuse  to  work 
with  another  i)ecause  that  jx*rson  is  distasteful  to  him,  or  for  any 
other  reason.  Plant  v.  Woods,  17G  Mass.  492,  498.  Pickett  v.  Walsli, 
192  ALass.  572,  oH2.  The  employer  also  has  a  right  freely  to  con- 
tract, the  right  to  select  his  employees,  and  to  decide  when  to  en- 
gage and  discharge  them.  L.  D.  Willcutt  &  Sons  Co.  v.  Dri.scoU, 
200  Mjiss.  110,  118.  Vegclahn  v.  Guntner,  167  Mass.  92,  97.  Haver- 
hill Strand  Theatre,  Inc.  v.  Gillen,  229  Mass.  413. 

In  Coppage  v.  Kansas,  236  U.  S.  1,  and  Adair  v.  United  States, 
208  U.  S.  161,  it  was  held  that  neitiier  Congress  nor  the  states  could 
interfere  with  the  liberty  of  contract  and  ix'nalize  an  employer  for 
threatening  an  employee  with  the  loss  of  employment  because  of 
his  membership  in  a  labor  organization,  or  punish  an  employer  for 
re(juiring  iiis  employees  to  agree  not  to  l)ecome  memb(>rs  of  such 
an  organization  as  a  condition  of  securing  or  retaining  employment. 
(See  II.  L.  c.  106,  sec.  12.)  A  combination  of  men  to  clo.se  the  em- 
ployment to  all  but  members  of  certain  organizations  is  unlawful 
and  can  be  restrained.  Cornellier  v.  Haverhill  Shoe  Manufacturers' 
Association,  221  Mass.  .554.  If  for  any  reason  the  employer  .sees  fit 
to  discharge  an  employee,  he  has  that  right  and  it  cannot  l>e  taken 
away  from  him. 

While  the  individual  employee^  may  refuse  for  any  cause  to  con- 
tinue in  the  plaintiff's  service,  the  defendants  could  not  conspire 
and  combine  to  quit  and  enforce  a  strik(^  Invause  \\\v  jilaintifT  iv- 
fused  employment  to  a  fellow  workman.  The  plaintiff  had  the  rigiit 
'in  law  to  do  what  he  did,  and  the  combination  of  employees  to  bring 


380  LEGALITY    OF   ENDS   PURSUED  [CHAP.  V 

about  a  strike  for  the  cause  alleged,  is  unlawful  iii  the-  end  it  sought, 
even  if  no  illegal  means  were  used  to  carry  it  into  effect.  Pickett  v. 
Walsh,  supra.  Martell  v.  White,  185  Mass.  255.  In  DeMinico  v. 
Craig,  207  Mass.  593,  it  was  decided  that  a  strike  to  get  rid  of  a 
foreman  because  some  of  the  employees  had  a  dislike  for  him,  was 
not  a  strike  for  a  legal  purpose.  A  strike  because  a  fellow  workman 
is  discharged  stands  on  the  same  ground  and  is  governed  by  the 
same  principle,  and  while  a  body  of  men  may  lawfully  strike  to 
better  their  conditions,  the  mere  refusal  to  continue  the  employ- 
ment of  one  of  their  number  is  not  such  a  condition  as  to  justify 
them  in  combining  to  enforce  a  strike.     DeMinico  v.  Craig,  supra. 

When  Lynch  was  discharged  there  was  no  dispute  about  wages 
or  hours  of  labor,  the  dispute  concerning  working  conditions  had 
been  settled  to  the  satisfaction  of  all  the  parties;  and  the  only  reason 
for  the  strike  was  the  discharge  of  Ljnich  and  the  refusal  to  employ 
him.  As  the  strike  was  for  an  unlawful  purpose,  it  was  properly 
restrained.  Decree  affirmed. 

WELINSKY  V.  HILLMAN 
Supreme  Court  of  New  York.     1920 

185  N.  Y.  Supp.  257 

Action  by  Max  Welinsky  against  Sidney  Hillman  and  others. 
On  plaintiff's  motion  for  an  injunction  pendente  lite.  Motion 
granted. 

GiEGERicH,  J.  It  is  quite  clear  from  the  papers,  and  I  do  not 
understand  it  to  be  disputed,  that  the  purpose  of  the  strike  and  of 
the  picketing  and  other  interference  with  plaintiff's  business  is  not 
to  secure  any  advance  in  wages  or  any  improvement  in  working  con- 
ditions, but  to  induce  the  plaintiff  to  continue  the  manufacturing 
department  of  his  establishnK^nt,  which  he  has  determined  to  aban- 
don. Of  course  the  right  of  the  employees  in  other  departments  of 
the  business  to  cease  work  for  this  or  any  other  reason  cannot  be 
questioned;  but  neither  they,  nor  the  other  employees,  nor  the 
union  to  which  they  belong,  can  })c  permitted  to  take  affirmative 
action  injurious  to  the  plaintiff's  business,  for  the  purpose  of  com- 
pelling him  to  continue  a  department  of  the  business  which  he  wishes 
to  abandon.  To  hold  otherwise  would  be  to  sanction  coercion  in 
support  of  a  demand  which  the  employees  had  no  right  to  make. 
I  am  not  insonsil)le  of  the  hardship  to  old  employees  thus  suddenly 
thrown  out  of  work,  or  of  the  loyalty  of  their  fellow  workers,  who 
seek  to  come  to  their  rescue;  but  I  see  no  justification  under  the  law 
for  their  present  attempt,  or  the  attempt  of  their  union,  to  compel 
tlu>  plaintiff  to  continue  their  employment. 

Such  situations  may  very  well  suggest  doubts  and  problems  to 
the  student  of  social  science;  but  in  the  present  state  of  our  law, 
which  is  adapted  to  prevailing  conceptions  of  individual  rights,  I 


SECT.  VIII]         STRIKES    FOR    MISCBLLAXEOUS    PURPOSES  3Sl 

tliiiik  there  is  no  doubt  about  tiie  decision  wliidi  iiiUHt  l)0  given  here. 
I  tliink  it  suflicicntiy  apiK-ars  from  tin-  complaint  that  the  injuries 
complained  of  are  such  that  the  remedy  at  law  would  not  l>e  ade- 
quate. 

The  motion  for  an  injunction  will  he  granted,  upon  the  phiintifT 
jijiviiiK  an  und<'rtakinK  in  a  sum  to  he  fi.ved  on  s<,'ttlement  of  the 
order.     Settle  order  on  notice. 


SCOTT-STAFFORD    OPERA    HOUSE    CO.  r.   MIXXEAPOLIS 
ML'SICIANS'  ASSN. 

Supreme  Court  of  Minnesota.     1912 

118  Minn.  410  • 

Philip  E.  Brown,  J.  The  plaintiffs  are  in  the  theatrical  basincss 
in  the  city  of  Minneajjolis.  The  defendants  are,  respectively,  a  cor- 
poration having;  only  musicians  as  members  and  the  officers  thereof. 
The  object  of  the  action  is  to  restrain  the  defendants  from  enforcing 
a  certain  rule  adopted  by  the  defendant  corporation  relative  t^)  ac- 
ceptance by  its  members  of  employment  by  the  plaintiffs.  This  i.s 
an  appeal  from  an  order  sustaining  a  general  deinuirer  to  the  com- 
plaint. 

The  complaint,  after  alleging  the  character,  business,  and  resi- 
dence of  the  several  plaintiffs,  proceeds,  in  substance,  as  follows: 
The  purpose  of  the  defendant  corporation,  as  indicated  by  its  ar- 
ticles of  incorporation,  is  "to  unite  the  instrumental  portions  of  the 
musical  profession  for  the  better  protection  of  its  interests  in  general 
and  the  establishment  of  a  minimum  rate  of  prices  to  be  charged  by 
members  of  said  association  for  their  professional  s<M-vices  and  the 
enforcement  of  good  faith  and  fair  dealings  among  its  members; 
to  promote  the  cultivation  of  the  art,  and  to  create  a  fund  for  the 
erection  of  a  suitable  building  for  musical  and  other  purposes  of  the 
association."  Practicalh'  all  the  musicians  available  or  qualified 
for  th<>  employment  by  any  of  the  plaintiflfs  are  members  of  the  de- 
f(Mulant  corporation,  and  subject  to  its  rules  as  int(M-prctod  by  the 
officers  thereof.  Each  of  the  plaintiffs,  for  a  number  of  years  past, 
has  been  engaginl  in  the  business  of  giving  public  entertainments 
and  charging  admission  thv^reto;  and  properly  to  give  the  same  it 
has  been  necessary  for  each  of  the  plaint ifTs  to  invest  large  sums 
of  monej'  in  ptM-manent  equipment,  such  investment  having  in  fact 
been  made  by  each  of  the  plaintiffs,  and  being  useless  for  any  pur- 
pose other  than  public  entertainin(>nts.  A  necessaiy  part  of  such 
entertainments  is  instrumental  music,  which  has  been  furni.>ihed  by 
the  members  of  the  d{>fendant  corporation;  it  InMng  impossible  for 
the  plaintiffs  to  obtain  satisfactory  music  for  their  entertaiimientis 
except  from  such  members. 


382  LEGALITY   OF   ENDS    PURSUED  [CHAP.  V 

Such  being  the  alleged  state  of  affairs,  and  the  relations  between 
the  plaintiffs  and  the  members  of  the  defendant  corporation,  the 
complaint  further  alleges  that  on  June  1,  1911,  the  defendant  cor- 
poration "adopted,  and  threatens  to,  and  will,  unless  restrained  by 
this  court,  enforce  a  rule  which  prohibits  any  and  all  members  of 
defendant  corporation  from  accepting  emplojTnent  or  playing  in  the 
orchestra  of  any  of  the  plaintiffs,  unless  at  least  a  certain  number  of 
persons,  all  members  of  defendant  corporation,  are  included  in  such 
orchestra";  that  the  number  of  persons  required  to  make  up  the 
orchestra  for  the  different  entertainments  given  by  each  of  the  plain- 
tiffs varies  with  the  nature  of  the  entertainment  to  be  given;  that 
in  many  of  the  entertainments  that  are  given  by  each  plaintiff  an 
orchestra  made  up  of  a  less  number  of  persons  than  is  required  by 
the  said  rule  would  be  entirely  satisfactory  and  sufficient,  and  that 
a  compliance  with  the  said  rule  in  such  entertainments  would  be  and 
is  a  useless  and  needless  burden  and  expense  upon  such  plaintiff; 
that  the  officers  and  members  of  the  board  of  directors  of  the  de- 
fendant corporation  propose  and  plan  to,  and  will,  unless  restrained, 
avail  themselves  of  the  said  rule  for  the  purpose  of  interfering  with 
each  of  the  above-named  plaintiffs  and  with  their  business,  and  will 
prohibit  and  prevent  each  plaintiff  from  securing  musicians  who  are 
qualified  to  perform  the  parts  that  are  necessary  to  the  proper  con- 
duct of  such  orchestra,  and  will  prevent  each  and  all  of  plaintiffs 
from  furnishing  competent  orchestras  at  their  said  entertainments, 
and  from  properly  and  successfully  conducting  their  said  business; 
that  if  the  defendant  corporation,  or  its  said  officers,  should  attempt 
to  enforce  the  said  rule,  all  of  its  members,  under  the  rules  and  by- 
laws thereof,  would  be  compelled  to,  and  would  in  fact,  comply  with 
its  direction,  and  would  refuse  to,  and  would  not  in  fact,  accept  em- 
plojTiient  in  the  orchestras  of  any  of  the  plaintiffs,  if  such  plaintiffs, 
or  any  of  them,  did  not  employ  the  nmnber  of  musicians  required 
under  the  said  minimum  rule ;  that  there  is  no  disagreement  or  cause 
of  complaint  between  any  of  the  plaintiffs  and  any  of  the  said  mu- 
sicians, and  that  the  only  cause  of  complaint  is  between  the  plain- 
tiffs on  the  one  side  and  the  defendant  corporation  and  its  officers 
on  the  other  side,  on  account  of  the  said  rule  and  its  enforcement; 
and  that  the  plaintiffs  are  without  adequate  or  any  remedy  at  law. 
The  prayer  is  for  a  judgment  forever  restraining  the  defendants, 
and  each  of  them,  from  in  any  way  interfering  with  the  business  of 
the  plaintiffs,  or  any  of  them,  and  from  enforcing  or  attempting  to 
enforce  said  rule,  and  for  general  relief. 

1.  The  plaintiffs'  first  contention  is  that  the  rule  complained  of 
is  ultra  vires.  .  .  . 

The  plaintiffs  in  the  instant  case  arc  in  no  position  to  challenge 
the  rules  of  the  defendant  corporation  as  being  ultra  vires;  and, 
even  if  they  had  any  standing  to  make  such  an  attack,  wc  are  satis- 
fied that  the  rule  under  consideration  is  not  ultra  vires. 


SECT.  Vm]        STRIKES   FOR   MISCELLANEOUS   PURPOSES  383 

2.  Unless,  thoreforo,  the  acts  toniplajiied  of  constitute  a  breach 
of  some  legal  or  ('(luituble  dut>',  without  regard  to  whether  or  not 
they  were  ultra  vires,  the  sustainijig  of  the  demurrer  wa.s  proix-r. 
This  brings  us  to  the  plaintiffs'  second  and  only  remainiiiK  conten- 
tion, viz.,  that  "the  rule  comjilained  of,  if  not  subject  to  the  objec- 
tion that  it  is  ultra  rires  under  the  articles  of  inccjrporation,  i,s  not 
legally  enforceable  against  these  iilaintiffs  in  any  event."  In  con- 
nection with  this  contention  the  jjlaintiffs  practically  admit  that  it 
is  contrary  to  Bohn  Mfg.  Co.  t'.  Mollis,  54  Minn.  22:^,  .'>.')  N.  W. 
1 119,  21  L.  H.  .\.  337,  40  Am.  St.  319,  and  s.-ek  to  show  that  the  rule 
established  by  that  case  has  been  rej)udiated,  or  at  le:ust  so  modilietl 
as  not  to  be  det^'rminative  of  the  instant  case;  Ertz  v.  Produce  Ex- 
change of  Minneapolis,  79  Minn.  140,  Si  N.  W.  737,  4S  L.  R.  A.  90, 
79  Am.  St.  433,  and  Tuttle  v.  Buck,  107  Minn.  14.5,  119  X.  \V.  940, 
22  L.  H.  A.  (.\.  s.)  599,  131  Am.  St.  440,  10  An.  Cas.  807,  U-ing 
cited  in  this  connection.  We  think,  however,  that  the  instant  cusa 
is  controlled  l)y  the  Bohn  ca,se,  ,s(//;m.  Says  the  syllabus  of  that 
case: 

"Any  man,  unless  under  contract  obligation,  or  unless  his  employ- 
ment charges  him  witii  some  public  duty,  has  a  right  to  refu.se  Xo 
work  for  or  deal  with  anj'  class  of  men,  as  he  sees  fit." 

This  proposition  is  not  attacked  in  the  instant  case,  nf)r  is  it  as- 
sailable. Hence  it  follows  that  any  one  of  the  memln'rs  of  the  de- 
fendant corporation  would  have  had  the  right  to  refu.se  to  work  for 
any  one  of  the  plaintiffs,  except  upon  such  terms  and  conditions  as 
such  member  might  have  seen  fit  to  impose. 

"And  this  right,"  continues  the  syllabus  in  the  Bohn  ca.se,  "which 
one  man  may  exercise  singlv,  anv  number  may  agree  to  exerci.se 
jointly." 

Again,  at  page  234,  this  same  case,  Mitchell,  J.,  saj's:  "What 
one  man  may  lawfully  do  singly,  two  or  more  may  lawfully  agree  to 
do  jointly.  The  numl)er  who  unite  to  do  the  act  cannot  change  its 
character  fi-om  lawful  to  unlawful." 

Unquestional)ly  this  is  the  law  in  this  State,  and  it  has  never  been 
repudiated  or  modified  by  this  Court.  See  State  r.  Daniels,  supra, 
page  155,  136  N.  W.  584.  The  cases  of  Tuttle  v.  Buck,  sujmi,  and 
Ertz  r.  Produce  Exchange  of  Minneapolis,  supra,  merely  stantl  for 
a  converse  rule,  which,  as  stated  by  Chief  Justice  Start  in  the  Ertz 
case,  page'  145,  is  that  "one  man  singly,  or  any  number  of  men 
jointly,  having  no  legitimate  interests  to  protect,  may  not  lawfully 
ruin  the  business  of  another  by  maliciou.sly  inducing  his  patrons  and 
third  parties  not  to  deal  with  him.  .  .  .  This  is  just  what  the  com- 
plaint in  this  case  charges  the  d<^fendants  with  doing,  and  we  hold 
that  it  stat<:»s  a  cause  of  action."  This  is  ecjually  the  .settled  law; 
l)ut  we  do  not  agree  with  the  plaintiffs  in  their  contention  that  it 
appli(>s  to  the  instant  case.  Paraphrasing  the  concluding  sentence 
of  the  Ertz  case,  "This  is  just  what  the  complaint  in  this  ca4>e  did 


384  LEGALITY    OF   ENDS    PURSUED  [CHAP.  V 

not  charge."  There  is  no  allegation  of  any  contractual  relation  be- 
tween the  plaintiffs,  or  any  of  them,  and  any  of  the  defendants,  or 
any  of  the  members  of  the  defendant  corporation.  There  is  no  al- 
legation of  conspiracy,  malice,  or  ulterior  motive.  No  question  of 
strike,  violence,  wage,  boycott,  or  violation  of  contractual  relations 
or  public  duty,  is  involved;  and  no  allegation  is  made  that  the  rule 
complained  of  is  not  beneficial  to  the  members  of  the  defendant 
corporation. 

The  plaintiffs'  argument  is  largely  based  upon  the  assumption  of 
lack  of  benefit  to  such  members;  but,  in  the  absence  of  any  allega- 
tion of  such  lack  of  benefit,  we  think  it  may  fairly  be  inferred  from 
the  facts  and  circumstances  alleged,  and  from  the  very  nature  of  the 
rule  recited,  that  the  rule  was  designed  to  benefit  the  members  of  the 
defendant  corporation.  Certainly  the  rule  does  not  appear  to  be  so 
manifestly  nonadapted  to  produce  benefit  as  to  raise  an  inference 
of  malice  or  evil  motive.  As  said  in  the  Ertz  case,  supra,  in  distin- 
guishing the  Bohn  case,  supra:  "It  is  to  be  noted  that  the  defendants 
in  the  Bohn  case  had  similar  legitimate  interests  to  protect  .  .  . 
and  that  the  defendants'  efforts  to  induce  parties  not  to  deal  .  .  . 
were  limited  to  members  of  the  association  having  similar  interests 
to  conserve,  and  that  there  was  no  agreement  or  combination  or  at- 
tempt to  induce  other  persons  not  members  of  the  association  to 
withhold  their  patronage,"  etc.  The  rule  established  by  the  Bohn 
case  was  reiterated,  though  not  applied,  in  the  Ertz  case,  and  there 
is  nothing  in  the  Tuttle  case,  supra,  to  the  contrary. 

We  think  it  applies  to  the  instant  case,  and  the  order  sustaining 
the  demurrer  to  the  complaint  is  therefore  affirmed.^ 

SCHNEIDER  v.  LOCAL  UNION  NO.  60 

Supreme  Court  of  Louisiana.     1905 

116  La.  270 

Monroe,  J.  .  .  .  It^  is  undisputed  that  the  plaintiffs  were  mem- 
bers in  good  standing  of  Local  Union  No.  60,  which,  in  turn,  was 
and  is  a  member  of  the  "United  Association  of  Plumbers,"  etc. 
It  is  a  fact  that  in  1902  the  General  Assembly  passed  a  law  for  the 
establishment  of  a  board  of  examiners  of  plumbers  in  cities  having 
30,000  or  more  inhabitants,  each  board  to  consist  of  five  plumbers 
(including  two  journeymen),  together  with  the  health  officer  and 
engineer  of  the  city  in  which  it  is  established,  the  members,  other 
than  those  last  above  mentioned,  to  be  appointed  by  the  mayor, 
with  the  consent  of  the  council  of  such  city.  The  act  further  pro- 
vides that  each  })oard  so  constituted  shall  appoint  one  or  more  in- 
spectors, to  whom  certain  duties  are  assigned,  and  it  contains  other 
provisions  which  need  not  be  here  enumerated.     It  appears  that, 

1  Cmlra:  Haverhill  Theatre  v.  GUlin,  229  Mass.  413. 


SECT.  VIII]        STRIKES   FOR   MISCELLAXEOUS   PURPOSES  385 

in  .luly,  1902,  iiuniodiately  after  tlie  art  in  question  lx»came  a  law, 
Local  Union  No.  00  held  a  meetinji,  at  which  the  following  action, 
as  recorded  in  the  niinuti's,  wa.s  taken,  to  wit: 

"We  have  a  secret  ballot.  Tlicodore  Correjolles,  Peter  Llilx^rt, 
E.  Schcki'Ier,  ]].  ('.  Ilawlcy,  and  IVarik  Robinson  wrre  plac<'d  in 
nomination,  which  resulted  in  I'lank  liobinsfjn  iind  l*et<'r  Llilx-rt 
elected  to  act  as  board  of  exaniinei-s,  and  Theodore  Correjolles  to 
act  as  reserved  nienilxir.  Brothers  Wni.  Mcdilvray,  Wrn.  Price, 
and  10.  (llennon  were  placed  in  nomination.  linHhcr  Mcdilvray 
was  elected  as  chief  inspector.     Carried." 

It  seems,  however,  that  the  mayor  and  council  of  >s'<'w  Orleans 
were  indisposed  to  be  controlled  in  selecting  their  appointees,  for 
they  t(?ndered  the  positions  of  journe\nnen  members  of  th<'  board 
to  Me.ssrs.  Patterson  and  Ybos,  who  were  also  memlMTS  of  Ix>cal 
Union  No.  00,  and  thereupon,  in  DecemlxT,  the  or^;anization  re- 
solved and  ordered  that  "any  member  accepting  |)Ositions  on  plumb- 
ers' board  except  regular  appointed  raemlx>rs  of  Local  Union  No.  (iO, 
be  fined  SlOO  and  be  expelled  from  the  union,"  to  which  was  added, 
"We  tender  Brothers  Patterson  and  Ybos  a  vote  of  thanks  for  de- 
clining positions  on  plumbing  board." 

Thereafter,  whether  at  the  request  of  the  mayor,  or  of  its  own 
motion,  does  not  appear,  on  March  25,  1903,  Local  No.  00  .s<>nt  its 
roster  to  the  mayor  (to  quote  the  minutes),  "so  he  can  select  two 
members  for  the  plumbing  board";  the  original  motion  to  that 
effect  having  l)een  amended  to  read  ((juoting  again  from  the  min- 
utes) : 

"We  leave  out  the  following  four  names:  Theodore  Correjolles, 
Frank  Robinson,  W.  Patterson,  and  L.  Ybos," 

So  the  mayor  received  the  roster  of  the  union,  less  the  names  of 
Patterson  and  Ybos,  who  had  already,  in  view  of  the  persuasive 
action  of  the  union,  decline'd  the  appointments,  and  those  of  Cor- 
rejolles and  Rol)inson,  whom  he  hail  already  declininl  to  appoint, 
and  he  selected  therefrom  the  names  of  the  plaintiffs,  to  whom  he 
gave  the  appointments,  which  action  was  approved  by  the  union 
on  April  9,  1903;  the  minutes  of  the  meeting  of  that  day  reading: 

"The  names  selected  by  the  mayor  of  the  two  meinlx^rs  of  Local 
No.  00  to  act  as  members  of  plunil)ing  board  l)e  indorsed  by  this 
local.     Carried." 

It  further  appears  that  the  union  afterwards  found  some  rea.'son 
to  doul)t  wht^ther  the  plaintiffs,  who  had  thus  become  pul)lic  officials, 
would  see  their  way,  in  the  dischargi^  of  the  obligations  which  they 
had  assumed  to  the  community  at  large,  to  voting  for  McCilvray 
as  inspector,  and  it  accordingly  on  April  23,  1903.  resolved  that 
"Brother  Schekeler  and  Brother  Schneider  be  instructed  to  vote 
for  Local  No.  OO's  candidate  for  insp(M'tor."  to  wiiich  was  added: 
"We  give  Brother  Mcdilvray  credentials  as  candidate  No.  00  for 
plumbing  inspector."     And  this,  apparently,  not  producing  the  dc- 


386  LEGALITY    OF   ENDS   PURSUED  [CHAP.  V 

sired  effect,  the  union,  on  August  25,  1903  (the  night  before  that  upon 
which  the  board  was  to  select  the  inspector),  adopted  the  following: 
"]\Iotion  by  Knable,  and  seconded  by  Sutherland,  that  the  two 
members  of  L.  U.  No.  60  who  were  appointed  on  the  plumbing  board 
be  fined  S25  and,  with  the  sanction  of  the  executive  committee,  of 
the  U.  A.  the  fine  be  increased  to  S150,  if  they  do  not  vote  for  Brother 
Wilham  McGilvray  as  inspector  of  plumbing  for  the  city  of  New 
Orleans.  Any  other  member  outside  of  McGilvray,  taking  the  posi- 
tion of  plimibing  inspector,  be  fined  same  as  two  members  of  plumb- 
ing board.  Any  member  taking  position  of  plumbing  inspector  be 
expelled  from  local." 

The  plaintiffs  nevertheless  persisted  in  ignoring  McGilvray,  and 
voted  for  men  who  (plaintiffs  say)  were,  in  their  opinion,  better 
quahfied  for  the  position;  Schekeler  voting  for  one  O'Dowd,  and 
Schneider  voting  for  Glennon,  lately  president  of  the  union.  The 
union  thereupon  (on  August  27th)  ordained  that  "the  constitution 
and  by-laws  be  enforced  in  regard  to  Brothers  Schekeler  and  Schneider 
in  regard  to  their  action  on  the  board  of  examiners,"  and  on  Sep- 
tember 14th  it  became  more  explicit,  as  will  appear  from  the  fol- 
lowing excerpt  from  its  minutes,  to  wit : 

"President  De  Leon  ruled  that  members  who  worked  in  shops 
with  E.  Schekeler  and  S.  Schneider,  after  knowing  that  said  men 
were  working  in  said  shops,  be  fined  not  less  than  $5.  So  ordered. 
Brother  William  O'Brien  appealed  from  the  decision  of  the  chair, 
after  which  a  vote  was  taken,  and  the  chair  was  sustained  by  a  vote 
of  32  to  5.  So  ordered.  Moved  and  seconded  that  Brothers  who 
had  worked  with  E.  Schekeler  and  S.  Schneider  on  Monday,  Sep- 
tember 14th  be  fined  the  amount  of  two  days'  wages,  and  if  they 
continued  to  work  with  said  men  on  Tuesday,  September  15,  1903, 
they  be  fined  the  sum  of  $25  each  additionally.  Amendment.  That 
fine  so  collected  be  paid  to  brothers  who  quit  work  on  account  of 
Schekeler  and  Schneider,"  etc. 

This  action  resulted  in  the  discharge  of  the  plaintiffs  by  their 
employers,  and  they,  then,  busied  themselves  in  an  effort  to  obtain 
relief,  first,  through  Local  Union  No.  60,  and  later  through  the  United 
Association.  .  .  .  Finally,  reaching  the  conclusion  that  no  relief 
would  be  afforded  them,  the  plaintiffs  upon  November  19th  brought 
these  suits.  .  .  . 

Upon  the  facts  thus  stated  (and  possibly  a  few  others  which  may 
be  hereafter  referred  to),  the  judge  a  quo  gave  judgment  in  favor 
of  the  plaintiffs,  respectively,  and  against  the  defendants,  Local 
Union  No.  GO  and  various  named  officers  of  said  association  who 
participated  in  the  action  complained  of,  maintaining  the  pn^lini- 
inary  injunction  which  had  been  issued,  ordering  that  the  plaintiffs 
be  reinstated  in  said  Local  Union  No.  60,  and  the  fines  imposed 
upon  them  set  aside,  and  condemning  said  defendants  in  solido,  in 
favor  of  the  plaintiff  Sch(!kelcr  in  the  sum  of  $482,  with  interest 


SECT.  VI Uj        STRIKES    FOR    MISCKLLAXEOUS    PURPOSES  387 

from  the  rcmlition  of  the  jiult^iiK-nt,  and  in  favor  of  the  plaintiff 
SchnoidcT  in  tlu;  sum  of  SMM),  with  interest.  And  from  the  jiidn- 
nients  so  icndeicd  the  defendants  have  apix-aleil. 

Th(!  ohhgation  which  initiates  of  Local  L'nion  No.  GO  are  retjuired 
to  take  is  to  Ix;  construed  with  reference  to  the  declared  purixj.scs 
of  the  organization,  and  is  binding  on  th<'  initiate  only  in  .so  far  as 
tho.se  purp(jses  ar<'  lawful  and  are  to  he  attained  hy  lawful  means. 
When  the  union  attempts  tlu;  accomplishment  of  an  ohject  which 
is  foreign  to  those  purposes,  or  attempts  the  accomplishment  of 
those  purposes  by  uidawful  means,  the  initiate  may  projK'rly  say: 
"I  entered  into  no  such  contract."  The  union's  rules  of  orden  spe- 
cifieally  provid(!  that  "jjartisan  politics  or  .sectarian  discu.ssion  shall 
not  be  permitted  in  the  meetings  under  any  circumstances."  Tlu; 
introiluction  of  a  res(iluti(m  conunitting  the  organization  to  the 
support  of  a  particular  political  party  or  a  particular  dogma  of  re- 
ligion would  therefore  be  a  violation  of  a  fuiulauKMital  law  of  the 
union,  as  construed  by  the  union,  and  its  adoption  would  impose 
no  obligation  on  its  members,  and  it  must  be  read  into  tho.se  rules 
that  the  introiluction  of  a  re.solution  which  is  violative  of  the  funda- 
mental law  of  the  land  has  no  better  foundation  and  its  passage  no 
greater  effect.  "The  courts  will  not  enforce  an  agre(Mnent  the  object 
of  which  is  forbidden  by  law  or  is  oppo.sed  to  the  policy  of  tiie  law. 
.  .  .  The  following  are  the  leading  classes  of  agreements  contrary 
to  the  policy  of  the  law:  (1)  Agreements  which  tend  to  injure  the 
public  service.  Of  this  character  is  an  agreement  to  u.se  one's  in- 
fluence to  secure  the  election  or  appointment  of  a  person  to  ti  jjublic 
office.  Gaston  v.  Drake,  14  Ncv.  175,  33  Am.  Rep.  548;  Nichols  v. 
Mudgett,  32  Vt.  546;  Gray  v.  Hook,  4  N.  Y.  449;  Filson's  Trust^^e 
V.  Hime.s,  5  Pa.  452,  47  Am.  Dec.  422.  .  .  ."  Principles  of  Con- 
tracts (Benjamin),  pp.  S9,  90.   .   .  . 

If,  therefore,  the  apj)ointment  of  McGilvray,  rather  than  of  .some 
other  and  perhaps  more  competent  man,  to  the  po.sition  of  insjx'c- 
tor,  could  be  considered  as  furthering  the  purposes  for  which  the 
defendant  herein  was  establislunl,  nevertheless  the  attempt  to  secure 
that  appointment,  by  threatening  and  imposing  fine  and  susj)ension, 
in  their  capacity  as  members  of  the  union,  upon  public  officials 
charged  with  such  appointment,  was  a  violation  of  law;  and  this, 
whether  those  officials,  as  members  of  the  union,  had  committed 
themselves  to  McGilvray's  candidacy  or  not.  But  we  are  unal)le 
to  concur  in  the  view,  relicMl  on  by  the  learned  counsel  for  the  de- 
fendant, that  the  plaintiffs  had  so  committed  thenwelves.  The 
union,  in  .Inly,  1902,  adopted  a  re.solution  indorsing  McGilvray  for 
the  position  of  inspector.  It  is  not  altogether  certain  that  the  plain- 
tiffs were  i)resent  when  that  action  was  taken,  and,  if  we  assume 
that  ttiey  were,  we  may  also  assume  (in  view  of  the  fact  that  there 
were  two  other  candidates,  including  Glennon,  for  whom  one  of  the 
plaintiffs,  as  a  member  of  the  board  of  examiners,  subsequently 


388  LEGALITY    OF   ENDS    PURSUED  ICHAP.  V 

voted),  that  the  plaintiffs  voted  against  him,  thereby  expressing  the 
opinion  that,  even  as  between  the  three  whose  names  were  pre- 
sented, he  was  not  the  best  man  for  the  place.  At  that  time,  how- 
ever, it  does  not  appear  that  the  selection  of  the  plaintiffs  to  member- 
ship of  the  board  having  the  appointing  power  was  in  contemplation, 
and  the  proposition  that,  by  being  absent  from  the  meeting  or  by 
voting  against  the  indorsement  of  McGilvray,  they  committed  them- 
selves to  the  position  that,  if  thej'  should  at  any  time  thereafter 
attain  such  membership,  they  would  vote  for  him  is  untenable,  since 
they  knew,  and  the  union  knew,  that  the  power  to  place  them  on 
the  board  was  not  vested  in  the  union;  that  when,  if  ever,  they  should 
be  placed  there,  it  would  be  as  public  officials,  assuming  and  owing 
a  paramount  duty  with  respect  to  the  selection  of  an  inspector  to 
the  community  at  large ;  and  that  they  could  not,  legally  or  morally, 
tie  themselves  up  in  such  a  manner  as  to  prevent  their  discharging 
that  duty  by  exercising  their  best  judgment  in  the  matter  of  such 
selection.  .  .  . 

It  is  therefore  ordered,  adjudged,  and  decreed  that  the  judgment 
rendered  in  the  consolidated  cases  of  Stevens  Schneider  v.  Local 
Union  No.  60,  United  Association  Journeymen  Plimibers',  etc., 
et  al.,  and  Edward  Schekeler  v.  Same  Defendants,  and  herein  ap- 
pealed from,  be,  and  the  same  are,  hereby  affirmed,  at  the  cost  of 
the  defendants.^ 

BAUSH  MACHINE  TOOL  CO.  v.  HILL 
Supreme  Judicl^l  Court  of  Massachusetts.     1918 

231  Mass.  30 

LoRiNG,  J.2  This  is  a  ])ill  in  equity  brought  against  the  members 
(something  over  two  hundred  and  fifty  in  number)  of  two  labor 
unions  to  enjoin  them  "from  interfering  with  the  business  of  the 
plaintiff  ...  by  maintaining,  carrying  on,  aiding  or  abetting  in 
any  manner  the  strike  now  in  force  against  the  plaintiff."  The 
case  was  sent  to  a  master.  The  master  found  that  the  members  of 
the  two  unions  had  struck  to  get  an  increase  of  pay,  to  unionize  the 
plaintiff's  shop  and  to  limit  the  number  of  apprentices.  The  plain- 
tiff and  the  defendants  are  at  issue  on  the  legality  of  a  strike  to 
limit  the  number  of  apprentices.  But  both  the  plaintiff  and  the 
defendants  agree  that  a  strike  to  unionize  an  employer's  shop  is 

I  Compare  Spavd  i-.  RinginR  Rock  Lodge  No.  665,  113  Atl.  (Pa.)  70.  See 
also,  Salladc  v.  Sohuykill  Co.,  19  Pa.  Sup.  Ct.  191. 

Strikes  fok  Political  and  Othku  Ptiui'osKs.  As  to  the  threatened  ICnglish 
miners'  strike  of  1919  to  secure  the  nationalization  of  the  ICnglish  mines,  see 
Wehh,  History  of  Trade  Unionism  (1920  ed.),  pp.  r)17-522;  and  as  to  the  increas- 
inK  rc!liance  of  EngUsh  strikers  upon  the  use  of  "direct  action,"  see  Ilmi,  pp.  663- 
673. 

'  Only  so  much  of  the  opinion  as  relates  to  the  legality  of  the  strike  is  given. 
—  Ed. 


SECT.  VIII]         STIIIKES    FOR   MISCELLANEOUS    PURPOSES  3S9 

an  illegal  strike  and  that  a  strike  for  an  increase  in  wages  is  a  legal 
strike.  Without  question  a  strike  for  both  a  legal  and  an  illegal 
purpose  is  an  illegal  strike  and  no  contention  has  been  made  to  the 
contrary.  It  is  not  necessary  therefore  to  consider  the  legality  or 
illegality  of  a  strike  to  limit  the  inimher  of  apprentices  and  we  lay  that 
purpose  of  the  strike  on  one  side  as  a  matter  of  no  consequence.'  .  .  . 

1  Contra:  Willcutt  t^.  Bricklayers'  Union,  200  Ma.s.s.  110  rstrikn  for  four  oh- 
jects,  two  of  which  were  hiwfiil  aini  two  aijparcntly  unlawful).  "Such  a  Ktrike 
must  be  treated  as  a  justifiable  strike  so  far  as  resjK'ct.s  its  ultimate  object."  — 
I'er  Hammond,  J.,  p.  114. 

The  doctrine  announced  in  Baush  Machine  Tool  Co.  v.  Hill  waa  followed  in 
Folsom  Engraving  Co.  v.  McNeil,  235  Maas.  269. 


CHAPTER  VI 
LOCKOUTS 

LEFEBVRE  v.  KNOTT 

COUR   SUPERIEURE    DE    QuEBEC.       1907 
32  Quebec  Sup.  Ct.  441 

Saint-Pierre,  J,  This  case,  which  had  its  origin  in  a  conflict 
between  employers  and  employees  as  to  the  price  to  be  paid  for 
labor,  has  given  rise  to  the  discussion  of  questions  of  law  which  are 
of  more  than  ordinary  interest.  The  facts,  which  are  few  and  simple, 
are  the  following:  On  the  10th  of  June,  1905,  the  Association  of 
Master  Plasterers  of  Montreal,  an  incorporated  body  of  some  years' 
existence,  were  notified  by  the  journeymen  plasterers  who  belonged 
to  "The  Journeymen  Plasterers  Union,"  that  on  and  from  the  3d 
day  of  July  then  next,  they  would  no  longer  consent  to  work  for 
the  universally  accepted  price  of  thirty-three  cents  and  one-third 
per  hour,  but  that  they  would  insist  upon  their  wages  being  ad- 
vanced to  forty  cents  per  hour  for  a  nine  hours  day's  work. 

In  plain  language,  this  meant  that  in  the  event  of  the  journey- 
men plasterers'  demand  being  refused  a  strike  would  be  declared 
on  or  before  the  3d  of  July.  The  master  plasterers,  many  of  whom 
had  signed  contracts  to  be  executed  during  the  opening  season, 
based  upon  the  scale  of  wages  generally  accepted  at  that  time,  and 
for  whom  a  general  strike  at  three  weeks'  notice  would  mean  serious 
losses,  if  not  utter  ruin,  felt  that  their  only  alternative  was  to  club 
together  for  their  own  protection.  Negotiations  were  attempted 
with  a  view  to  a  compromise,  but  without  success. 

Finally,  on  the  22d  day  of  June  an  agreement  was  entered  into 
and  signed  by  all  the  members  present  of  which  the  following  are 
the  chief  clauses: 

"Whereas,  it  is  essential  that  the  master  plasterers  in  Montreal 
and  vicinity,  hereinafter  called  the  subscribers,  unite  to  protect 
their  material  interests,  now,  therefore  these  present  witness,  that 
the  commercial  firms  and  individual  employers  whose  signatures 
are  hereto  attached,  have  mutually  agrecnl  and  hereby  severally 
and  reciprocally  bind  and  oblige  themselves  as  follows: 

"1.  In  the  event  of  a  strike  b(M'ng  declared  by  'The  Plasterers' 
Union  of  Montreal,'  said  union  shall  not  be  recogniz(!d  in  any  man- 
ner whatsoever,  on  and  after  the  3d  day  of  July,  1905. 

"2.  In  the  event  of  a  strike  being  declared  by  said  union  against 
any  of  the  subscribers  to  this  agreement,  all  the  subscribers  shall 

390 


CHAP.  VI]  LOCKOUTS  391 

immediately  lock  out  all  inembors  of  the  said  union,  then  in  their 
employ,  and  cease  employing  same. 

"3.      .  .  . 

"4.  Subscribers  shall  ict.iin  the  ri^lit  to  negotiate  individually 
with  any  jouriicyriiaii  pla.st<T<'r,  whether  a  memlx'r  of  the  union 
or  not  and  arranf^e  such  scale  of  wages  as  he  may  see  ht  not  to  ex- 
ceed the  present  rate  of  383  cents. 

"5.     .  .  . 

"6.  The  subscribers  and  each  of  them  severally  bind  themselves 
to  pay  into  a  fund,  as  lifiuidated  damages  f(jr  the  violation  of  any 
clause  in  the  jjresent  agreement,  the  sum  of  S5(M).()().  As  an  ad- 
mission of  said  liability  and  to  secure  the  prompt  payment  of  said 
damages,  each  of  the  said  subscribers  shall  give  a  note  l>earing  date 
not  later  than  the  lOtli  of  July,  1905.  This  note  shall  Ix'  executed 
in  favor  of  J.  Lefebvre,  John  McLean,  and  Joseph  Chanibi-rland,  as 
'trustees'  for  the  Master  Plasterers'  Association;  and  shall  Ixi  de- 
posited with  the  secretary  of  said  board. 

"7.  The  provisions  of  clauses  5  and  6  hereof  shall  apply  to  such 
subscribers  only  as  have  union  sliops. 

"8.  The  subscrilx'rs  agree  that  their  liability  in  damages  under 
clause  6  hereof  and  for  the  amount  therein  stated,  shall  inunediately 
arise  in  the  event  of  a  decision  of  the  subscribers  to  the  efifect  that 
the  present  agreement  has  been  violated. 

"9.      .  .  . 

"  10.  The  clauses  of  this  agreement  relating  to  damages  are  hereby 
specially  declared  to  be  of  the  essence  of  this  contract,  without  which 
the  same  would  not  have  been  made,  and  binding  upon  all  sub- 
scribers for  the  space  of  one  year  from  the  date  thereof." 

Among  the  members  of  the  Master  Plasterers'  Association  who 
signed  this  agreement  were  Knott  &  Gardner,  the  defendants  in 
the  present  case.  A  few  days  later,  in  furtherance  of  the  object 
mentioned  in  the  above  agreement,  and  as  a  sanction  to  it,  the  siune 
gentlemen  gave  to  the  tiiree  trustees  named  in  the  above  deed  of 
agreement,  the  five  hundred  dollar  note  which,  under  the  terms 
thereof  each  member  of  the  coalition  had  bound  and  obliged  him- 
self to  sign  and  hand  over  to  the  three  trustees.  As  had  been  ex- 
pectetl,  in  the  month  of  July  the  impending  strike  was  finally  an- 
nounced to  have  begun,  and  the  evidence  shows  that  it  was  continued 
for  a  period  of  time  covering  several  months. 

About  the  middle  of  Septeml^er,  Knott  it  dardner,  for  reasons 
best  known  to  themselv(»s,  broke  their  engagement,  and  yi<'lded  t-o 
the  strikers'  demands  by  paying  tiieir  men  forty  cents  an  hour.  The 
result  of  this  action  on  their  part  j)roved  highly  detrimental  to  the 
other  master  plasterers.  The  strikers,  encouraged  by  their  ilefection, 
maile  up  their  minds  to  prolong  the  struggle,  and  l)y  their  doing  so 
increased,  in  a  larg(>  pioportion,  the  losses  of  the  other  ma.ster  plas- 
terers, who  remained  faithful  to  their  pledge.     On  being  informed 


392  LOCKOUTS  [CHAP.  VI 

of  the  action  taken  by  Knott  &  Gardner,  the  association  decided 
that  these  gentlemen  should  be  made  to  pay  the  penalty  of  $500 
agreed  upon,  and  on  the  28th  of  September,  1905,  the  present  ac- 
tion, based  upon  the  promissory  notes  signed  by  them,  was  taken 
out  in  the  name  of  the  three  trustees,  and  served  upon  them.  .  .  . 

As  may  be  noticed  b}^  the  various  allegations  contained  in  the 
pleadings,  the  main  question  to  be  looked  into  is  whether  the  pro- 
ceedings resorted  to  by  the  master  plasterers  constituted  such  a 
combination  as  is  in  restraint  of  the  freedom  of  trade  and  of  the 
liberty  of  contracts,  and  for  that  reason  prohibited  by  law.  .  .  . 
Was  the  coalition  or  combination  of  the  master  plasterers  an  un- 
lawful one  under  the  circumstances  of  the  case? 

The  solution  of  this  first  question  must  of  all  necessity  follow, 
as  a  corollary  and  as  a  natural  sequel,  that  to  be  given  to  this  other 
one:  Was  the  action  of  the  strikers  a  lawful  one?  It  is  as  clear  as 
the  sun's  light  at  noonday  that  if  the  journeymen  plasterers  were 
not  violating  any  law  in  forming  a  coalition  or  combine  in  order 
to  secure  advanced  wages,  their  employers  could  not  possibly  be 
guilty  of  any  wrong,  either  private  or  public,  in  clubbing  together 
for  the  purpose  of  resisting  their  demand,  and  by  the  same  means 
of  protecting  themselves  against  loss. 

Formerly  the  fact  of  forming  a  combination  for  the  purpose  of 
raising  the  price  of  labor  was  held  to  be  a  conspiracy  punishable  by 
law;  but  times  have  changed,  notions  more  humane  and  more  in 
accordance  with  real  justice  have  prevailed,  and  now,  in  all  civilized 
countries  the  world  over,  workingmen  are  permitted  to  unite  to- 
gether for  their  mutual  protection,  and  legislation  has  intervened  to 
sanction  such  rights.  .  .  . 

It  being  shown  that  the  journe\Tncn  plasterers  were  doing  nothing 
but  that  which  they  had  a  right  to  do,  in  joining  together  for  the 
purpose  of  obtaining  an  increase  of  wages,  the  most  rigid  logic  ought, 
in  my  opinion,  to  bring  us  to  the  conclusion  that  if  the  action  of  the 
employees  was  lawful  in  making  such  a  demand,  that  of  the  em- 
ployers was  equally  lawful,  when  it  is  shown  that  all  they  did  was 
simply  to  club  together  in  order  more  effectually  to  oppose  it. 

I  find  this  point  so  clearly  elucidated  in  a  book  recently  published 
"On  the  Law  of  Combinations,"  by  Mr.  Eddy,  of  the  Chicago  Bar, 
that  I  cannot  resist  the  temptation  of  giving  here  a  few  citations 
from  that  really  valuable  treatise. 

I  will  cite  from  page  477,  paragraph  561,  under  the  caption  "Com- 
bination of  employers  to  resist  demands  of  employees." 

He  says:  "A  combination  of  employers  to  resist  an  artificial  ad- 
vance in  wages  demanded  by  a  combination  of  employees  is  lawful, 
inasmuch  as  the  combination  of  employers  is  not  made  for  the  pur- 
pose of  interfering  with  the  rate  of  wages,  as  normally  regulated  l)y 
supf)ly  and  demand.  The  right  of  employees  to  demand  that  eight 
hours  should  constitute  a  day's  work  is  clear.     It  is  the  right  of  a 


i 


f'HAP.  VI]  LOCKOUTS  393 

laWorcr  to  fix  such  value  on  his  services  as  he  sees  projKjr;  there  i.s 
no  power  lodged  anywhere  to  compel  him  to  work  for  less  than  he 
chooses  to  accept.  And  it  is  clear  that  workmen  may  agree  together 
that  they  will  ncjt  work  for  less  than  a  hxetl  sralc,  and  that  Ijv  all 
lawful  means,  sucli  as  reasoning  and  persuasion,  they  will  prevent 
other  workmen  fnjin  w<nking  for  less. 

"But  what  is  jicrmitted  to  employees  is  also  permitted  to  em- 
ployers, and  it  cannot  be  succes.sfully  urged  that  (•mploy<-cs  may 
be  permitted  to  combine  together  to  advance  their  wages  while 
employers  shall  not  be  jjermitted  to  cornljine,  together  to  resist  by 
lawful  means  the  advance  demanded."   .   .   . 

The  defendants  thought  that  they  had  found  an  illegal  objeet  in 
that  part  of  the  agreement  by  which  the  master  plasterers  Ixnind 
them.selves  not  to  maintain  in  their  employment  tlu;  meml>ers  of 
the  journeymen  plasterers  who  were  members  of  the  union.  I  ean- 
not  agree  with  them  in  this  contention.  If  it  were  lawful  for  jour- 
neymen to  decline  working  except  at  a  specific  rate  of  wages,  surely 
it  could  not  have  been  unlawful  for  tiie  master  plasterers  to  decline 
employing  the  very  men  who  iiad  openly  expressed  their  unwilling- 
ness to  work  for  them  except  on  their  own  terms.  .  .  . 

I  might  add  that  it  is  incorrect  to  state  that  a  general  boycott 
was  decided  upon  by  the  master  plasterers  against  the  journeymen 
who  were  members  of  the  union.  I  find,  on  the  contrary,  that,  un- 
der the  agreement,  each  individual  member  of  the  as.sociation  was 
free  to  employ  any  one  of  them  at  the  recognized  wages  of  885  cents 
per  hour.  I  have  no  hesitation,  therefore,  in  deciding  tin's  first  (jues- 
tion  in  favor  of  the  master  plasterere.  .  .  .  The  inscription  in  law 
and  the  plea  to  the  merits  are,  therefore,  dismissed,  and  judgment 
will  go  for  the  plaintiffs  for  the  sum  of  S500,  with  interest  and  costs 
as  prayed  for  in  the  declaration.' 

1  N.  Y.,  Chicago  &  St.  Ix)uis  R.  R.  Co.  v.  Schaf!er,  65  Ohio  St.  414;  Atkins  v. 
Fletcher  Co.,  05  N.  J.  Eq.  658. 


CHAPTER  VII 
BOYCOTTS! 

Section  1.    Primary  Boycott 

Clahk,  The  Law  of  the  Employment  of  Labor,  pages  289,  290. 
A  distinction  is  sometimes  drawn  between  what  are  classed  as  pri- 
mary and  secondary  boycotts.  In  the  former,  the  action  is  directly 
against  the  offending  emploj^er,  the  members  of  the  organization 
simply  withholding  their  patronage  as  laborers  or  purchasers,  and 
inducing  their  fellows  to  do  the  same.  The  mere  withholding  of 
patronage  or  refusal  to  trade  is  not  unlawful,  and  the  announce- 
ment or  publication  of  such  a  purpose  is  within  the  rights  of  the 
persons  agreeing  together,  even  though  it  results  in  the  injury  of  the 
person  against  whom  the  acts  are  directed.  And  it  will  follow  that 
persons  freely  joining  in  such  withholding  of  business  intercourse 
will  not  by  their  acts  inculpate  either  themselves  or  the  original 
actors.  But  such  is  not  the  usual  course  of  the  boycott;  and  indeed 
the  definitions  usually  adopted  do  not  cover  such  acts,  but  are  ap- 
plicable only  to  the  second  class,  or  the  so-called  secondary  boycotts 
(sometimes  called  compound  boycotts),  which  are  generally  under- 
stood to  mean  combinations  to  harm  one  person  by  coercing  others 
to  harm  him.  .  .  . 

Martin,  The  Law  of  Labor  Unions,  Sec.  71,  page  107.  It  is 
lawful  for  members  of  a  union  acting  by  agreement  among  them- 
selves to  cease  to  patronize  a  person  against  whom  the  concert  of 
action  is  directed,  when  they  regard  it  for  their  interest  to  do  so. 
This  is  the  so-called  "primary  boycott,"  and  in  furtherance  thereof 
it  is  lawful  to  circulate  notices  among  the  members  of  the  union  to 
cease  patronizing  one  with  whom  they  have  a  trade  dispute,  and  to 
announce  their  intention  to  carry  their  agreement  into  effect.  For 
instance,  if  an  employer  of  labor  refuses  to  employ  union  men,  the 
union  has  a  right  to  say  that  its  members  will  not  patronize  him. 
A  combination  between  persons  merely  to  regulate  their  own  conduct 
and  affairs  is  allowable,  and  a  lawful  combination,  though  others 
may  bo  indirectly  affected  thereby.  And  the  fact  tliat  the  execution 
of  the  agreement  may  tend  to  diminish  the  profits  of  the  party  against 

1  Although  lofrjcally  the  boycott,  as  a  moans  used  by  lalior  organizations, 
should  be  j)laccd  under  Chaptrr  IV,  yet  because  of  the  desirability  of  a  fuller 
treatment  of  this  important  subject,  a  separate  chapter  has  been  devoted  to  it.  — 
Ed. 

394 


SECT.  I]  pKiMAin   bovco'rr  395 

whom  such  act  is  aimed  docs  not  render  the  participants  liable  \n 
a  prosecution  for  a  criminal  conspiracy,  or  to  a  suit  for  injunction. 
Even  though  he  sustain  financial  loss,  he  will  \xi  without  remedy, 
either  in  a  court  of  law  or  a  court  of  equity. 


KEARNEY  v.  LLOYD 
Exchequer  Division,  Iueland.     1S90 

L.  It,  Ireland,  2G  Q.  li.  &  Ex.  LHv.  268 

Palles,  C.  B.  The  only  (juestions  argued  before  us  had  refer- 
ence to  the  cause  of  action  contained  in  paragraphs  7  to  10  of  the 
statement  of  claim.  Tpon  this  cause  of  action  each  party  insists 
that,  upon  the  findings  of  the  jury,  he  is  entitled  to  have  the  verdict 
entered  for  him.  The  defendants,  in  addition,  submit  that  no  evi- 
dence was  given  at  the  trial  which  ought  to  have  lx?en  submitted 
to  the  jury  upon  the  question  whether  the  acts  of  the  defendants 
''injured"  the  plaiiititT,  and  that  for  tliat  reason  also  they  an-  now 
entitled  to  the  verdict. 

The  paragraphs  to  which  I  have  referred  state  in  substance  that 
the  plaintiff  was  incumbent  of  a  Union  of  certain  parishes  of  the 
Protestant  l-^piscopalian  Church  of  Ireland,  and  as  such  was  in  re- 
ceipt of  an  income  which  partly  deiMMided  upon  the  amount  of  the 
contributions  by  the  parishioners  to  a  fund  called  the  "Sustentation 
Fund";  that  the  defendants,  being  some  of  such  parishioners,  "ma- 
liciously intending  to  injure  the  plaintiff,  and  to  deprive  him  of  his 
income  as  such  incumb(>nt,  and  with  the  view  of  ol)liging  him  to 
resign  the  incumbency,  and  to  ruin  him  in  his  profession  as  a  cU'rgy- 
man,  agreed  to  abstain  themselves,  and  to  cause  and  procure  othi'rs 
of  the  parishioners  to  abstain,  from  contributing  to  the  Sustentation 
Fund;  that  in  pursuance  (^f  that  agreement  they  abstained  and 
procured  others  of  the  parishioners  to  abstain,  from  so  contributing; 
and  that  the  plaintiff  was  in  consequence  deprived  of  the  greater 
part  of  his  income,  and  obliged  to  resign  the  incuml^ency. 

The  jury  found,  inter  alia,  in  answer  to  questions  submitted  to 
them  by  the  learned  judge,  that  the  (lef(>ndants  combined  and  agreed 
with  each  other  to  abstain  thems(>lves  from  subscribing  to  the  Sus- 
tentation Fund,  but  not  to  induce  other  parishionei-s  not  to  sub- 
scribe; that  this  was  done  by  the  defendants,  not  solely  with  the 
intention  of  injuring  the  plaintiff,  nor  solely  with  the  intention  of 
ol)liging  him  to  leave  the  parish,  nor  solely  with  the  intention  of 
promoting  the  religious  interests  of  the  parish;  l)Ut  jxu-tly  with  the 
intention  of  injuring  the  plaintiff,  or  obliging  him  to  leave  the  parish, 
and  partly  with  {ho  intention  of  promoting  the  reliirious  interests 
of  the  parish;  and  that  tiH>  mod(>  l)y  wiiich  tne  defendants  intended 
to  promote  the  religious  interests  of  the  parish  was  by  ol»liging  the 
plaintiff  to  leave  it.     They  further  found  that  subscriptions  WQiv, 


396  BOYCOTTS  [CHAP.  VII 

in  fact,  withheld  from  the  Sustentation  Fund  by  reason  of  the  de- 
fendants' combination  and  agreement;  that  the  plaintiff  was  thereby 
"injured"  and  obliged  to  leave  the  parish;  and  they  assessed  the 
damages  at  £200.  .  .  . 

The  mode  most  favourable  to  the  plaintiff  of  reading  the  state- 
ment of  claim  is  to  treat  the  agreement  to  refrain  from  subscribing, 
not  as  the  conspiracy  itself,  but  as  an  act  which  caused  damage  to 
the  plaintiff  —  as  that  which,  in  an  indictment,  would  have  been 
pleaded  as  an  overt  act  of  the  conspiracy;  and  as  seeking  to  render 
that  'prima  facie  lawful  act  of  agreement  wrongful  against  the  plain- 
tiff, by  reason  of  the  intention  with  which  it  was  entered  into,  alleg- 
ing that  intent  to  be  to  injure  the  plaintiff,  by  obliging  him  to  resign 
his  incumbency.  This  intent  the  plaintiff  endeavoured  to  prove  in 
evidence,  by  proof  of  the  conspiracy  alleged  to  have  been  entered 
into  for  that  purpose.  I  assume,  then,  that  the  jury  found:  1,  that 
the  defendants,  with  intent  to  injure  the  plaintiff  by  obliging  him 
to  resign  his  incumbency,  agreed  to  refrain  from  subscribing;  2,  that 
by  reason  thereof  subscriptions  were  in  fact  withheld,  and  that  the 
plaintiff  was  thereby  injured  and  obliged  to  resign;  and  I  proceed 
to  consider  the  sense  in  which  these  findings  should  be  understood 
to  make  the  action  maintainable,  and  the  evidence  to  sustain  them 
when  read  in  that  sense. 

It  will  be  admitted  that,  to  support  the  action,  the  words  "in- 
jury" and  "injured"  in  these  findings,  must  be  read  in  their  strict 
legal  sense,  as  meaning  the  infringement  of  some  legal  right  vested 
in  the  plaintiff.  As  laid  down  in  Rogers  v.  Rajendro  Dutt,  13  Moo. 
P.  C.  C.  209,  241,  "It  is  essential  to  an  action  in  tort  that  the  act 
complained  of  should,  under  the  circumstances,  be  legally  wrongful 
as  regards  the  party  complaining  —  that  is,  it  must  prejudicially 
affect  him  in  some  legal  right;  merely  that  it  will,  however  directly, 
do  him  harm  in  his  interests  is  not  enough."  We  are,  then,  to  in- 
quire was  there  any  right  vested  in  the  plaintiff  which  woilld  be 
invaded  by  subscrii)tions  having  been  withheld,  or  by  his  being 
obliged  to  resign  under  the  circumstances  which  appear  in  the  case? 
I  take  his  resignation  first,  as  any  injury  to  him  by  reason  of  it  will 
be  found  to  be  attracted  to,  and  involved  in,  the  withholding  the 
subscriptions.  In  one  sense  he  was  obliged  to  resign;  in  another 
he  was  not.  His  income  was  so  much  reduced  that  he  voluntarily 
resigned.  It  was  his  own  act,  to  which  he  was  constrained  no  other- 
wise than  by  the  reduction  of  his  income;  and  unless  this  reduction 
w;is,  as  against  him,  an  actionable  wrong,  the  voluntary  resignation 
which  resulted  from  it  cannot  be  deemed  an  "injury"  in  law.  Was, 
then,  the  reduction  of  his  income,  in  the  mode  in  which  it  was  ef- 
fected, an  actionable  wrong  —  i.e.,  an  invasion  of  any  legal  right 
vested  in  him?  Each  paiishioner  was  at  perfiH't  liberty  to  sub- 
scribe, or  not  to  subscribe,  at  his  own  mere  volition.  The  plaintiff 
had  no  right  to  compel  him  to  subscribe;  and  therefore  the  isolated 


SECT.  I]  PRIMAKY   liOYCOTT  397 

act  of  one  pari.shionor  alone  refraining  from  subscribing  could  not 
—  irrespective  of  intention  —  amount  to  a  legal  injury  to  the  plain- 
tifT;  nor  would  it  make  any  difference  that  the  inU-ntion  of  that 
one  parishioner  in  so  rofniininn  was  to  deprive  the  plaintiff  of  the 
means  necessary  to  support  his  position  of  incumbent,  or  to  annoy 
him,  or  to  do  him  liarm,  using  that  word  in  the  p(jpular  sense.  Such 
intention,  however  it  may  be  regarded  from  a  moral  point  of  view, 
cannot  amount  to  an  intent  to  "injur<',"  U'cause  the  act  intended, 
if  in  fact  accomplished,  would  not  amount  to  an  injur>-,  in  the  sense 
of  an  invasion  of  a  ieffal  right.  .  .  .  The  plaintiff  had  no  legal  right 
which  would  have  been  invaded  by  the  act  of  the  one  parishioner 
which  I  have  mentioned. 

If,  then,  each  defendant,  acting  separately  and  independently 
of  his  fellows,  refrained  from  subscribing,  in  the  sanu;  manner  in 
all  respects,  other  than  in  combination,  in  which  he  did  here,  and  if 
the  same  result  ensued,  i.  e.,  that  the  plaintiff  was  oblig.-d  to  resign, 
no  legal  right  of  the  plaintiff  would  have  been  invaded.  If,  tiien, 
the  acts  of  the  defendants  are  wrongful  as  against  the  plaintiff,  they 
must  lx>  so  merely  by  reason  of  tiie  pre-concert;  and  thus  we  come 
to  this,  on  which  the  whole  case  must  rest  —  does  that  pre-concert 
render  wrongful  the  acts  which  otherwise  would  have  l)een  innocent? 
As  to  this,  it  is  to  be  observed  that  there  is  no  element  of  wrong  in 
the  mode  in  which  this  pre-concert  was  obtained,  as  distinct  from  the 
pre-concert  itself.  It  is  not  alleged  that  the  adherence  to  it  of  any 
party  was  obtainod  by  fraud,  intimidation,  breach  of  a  contract  in 
which  the  plaintiff  was  interested,  or  other  means  wrongful  towards 
the  plaintiff.  .  .  . 

Nothing  then  remains  which  can  render  the  agreement  unlaw- 
ful, except  the  intention  with  which  it  was  entered  into;  and  that 
intention  —  as  I  have  already  observed  —  does  not  amount  to  an 
intention  to  "injure"  the  plaintiff,  or  otherwise  act  wrongfully  to- 
wards him;  nor  is  it,  either  by  statute  or  at  common  law,  wrongful 
as  against  the  public  generally,  as  were  the  agreements  in  some  of 
the  cases  cited  in  the  argument  in  reference  to  trade  societies.  From, 
then,  these  rightful  acts  of —  1,  a  determination  by  each  parishioner 
not  to  sul)scribc;  2,  a  coml)ination  by  each  of  them  with  the  others 
to  adhere  to  that  determination,  unaffected  by  any  purpos<>  of  ef- 
fecting "wrong"  towards  another,  or  any  other  illegal  purpose,  I 
am  wholly  unable  to  form  any  compound  of  which  wrong  shall  lie 
an  element;  and  for  this  reason  I  am  of  opinion  that  the  findings 
of  the  jury  do  not  show  an  invasion  of  any  legal  right  in  the  plain- 
tiff; and  that  consequently  the  vm-dict  upon  it  sliould  iiave  Ix-eii 
entered  for  the  defendants.*  .  .  . 

>  Compare  Ware  and  Do  Freville,  Ltd.  r.  Motor  Trade  Assn.,  [1921]  3  K.  B.  40. 
See  also,  Brewster  v.  Miller's  Sons  Co.,  101  Ky.  'M\S. 


398  BOYCOTTS  [CHAP.  VII 

MILLS  V.  UNITED  STATES  PRINTING  CO. 

KISSAM  V.  UNITED  STATES  PRINTING  CO. 

Supreme  Court  of  New  York.     1904 

99  Aw.  Div.  605 

Jexks,  J.  The  defendant  printing  company  was  ordered  to  show 
•cause  why  an  injunction  should  not  issue,  restraining  it  from  dis- 
charging the  plaintiff  or  any  other  of  its  workmen  because  of  their 
failure  to  join  the  labor  unions  mentioned  in  the  complaint,  and 
from  carrying  out  the  provisions  of  two  contracts  made  with  two 
of  the  unions,  defendant.  The  other  defendants  were  ordered  to 
show  cause  why  they  should  not  be  restrained  and  enjoined  from  in 
any  way  interfering  with  the  plaintiff  or  any  of  his  fellow  non-union 
workmen  in  their  employment  by  the  printing  company,  from  or- 
ganizing a  strike  against  the  said  defendant  printing  company, 
from  picketing,  boycotting,  or  in  any  way  interfering  with  its  busi- 
iiess  management  and  affairs,  or  with  any  of  its  officers,  agents, 
employees  or  servants,  and  that  they  and  each  thereof  be  restrained 
from  boycotting  or  in  any  way  interfering  with  the  sale  of  any  goods 
manufactured  by  the  defendant  printing  company.  The  order  con- 
tained a  preliminary  injunction.  Upon  the  hearing,  the  Special 
Term  continued  the  injunction  pendente  lite  as  to  the  defendants 
other  than  the  printing  company,  but  denied  the  injunction  as  against 
the  printing  company.  These  are  cross-appeals  from  that  order  by 
the  plaintiff,  and  by  the  defendants  other  than  the  printing  com- 
pany. 

It  must  be  carefully  noted  that  the  defendants  appellant  are  thus 
restrained  from  "organizing  a  strike  against  the  said  defendant 
printing  company,"  from  "picketing"  and  from  "boycotting."  I 
think  that  the  injunction  against  organizing  a  strike  cannot  stand, 
and  that  the  injunction  against  "picketing"  and  "boycotting" 
runs  in  terms  too  broad,  and  that  the  learned  Special  Term  rightly 
denied  the  injunction  as  against  the  printing  company.  The  record 
contains  many  affidavits  full  of  allegations,  denials,  counter  allega- 
tions and  counter  denials.  This  is  natural  to  a  hearing  of  such  issues 
upon  ex  parte  statements  unsubjected  to  the  tests  of  cross-examina- 
tion, and  unrestricted  by  rulings  upon  relevancy,  materiality  or 
competency.  It  may  be  that  the  judgment  upon  trial  will  be  far 
different  from  any  preliminary  relief  which  this  record  justifies. 
(See  Warsaw  Water  Works  Co.  v.  Warsaw,  4  App.  Div.  509;  Meyers 
v.  City  of  New  York,  58  Id.  534.) 

The  defendants  should  not  be  restrained  from  "organizing  a 
strike  against  the  said  defendant  printing  company."  An  employee 
who  has  not  bound  himself  to  his  master  by  contract  cannot  be 
bound  to  him  by  law.  Thcroforo,  he  may  quit  his  work.  If  he  may 
■quit  his  work  absolutely,  he  may  (juit  it  because  the  conditions 


SECT.  I]  PRIMARY    BOYCOTT  399 

thereof  ure  not  to  his  liking,  jukI  lie  is  free  to  say  that  lie  will  not  take 
up  that  work  until  tin;  conditions  are  to  his  likinf?.  What  one  may 
lawfully  do  alone,  he  may  do  in  eoncert,  and  hence  a  strike  is  not 
per  .sr  unlawful.  The  court,  in  XatioruU  Protective  .\.ssn.  v.  Cum- 
ming  (170  N.  Y.  315,  321),  do  not  differ  over  the  proposition  that 
"a  peaceable  and  orderly  strike,  not  to  harm  others,  but  to  improve 
their  own  c(Midition,  is  not  in  vicjlation  of  the  law."  (See,  too,  W'unch 
V.  Shankland,  59  Apj).  Div.  4H2.) 

"Picketing"  may  simply  mean  the  stati(j/iing  of  men  f(jr  obser- 
vation. If  in  the  doing  of  this  act,  solely  for  such  purpose,  there  be 
no  molestation  or  physical  arnioyance,  or  let  or  hindrance  of  any 
person,  then  it  cannot  \n'.  said  that  sucii  an  act  is  /at  se  unlawful. 
But  "picketing"  may  also  mean  tlu;  stationing  of  a  man  (jr  men  to 
coerce  or  to  threaten,  or  to  intimidate  or  to  halt  or  t(j  turn  aside 
against  their  will  those  who  would  go  to  and  from  the  picketed  place 
to  do  business,  or  to  work,  or  to  seek  work  therein,  or  in  .some  other 
way  to  hamper,  hinder  or  harass  the  free  dispatch  of  business  by 
the  employer.  In  that  ca.se  picketing  may  well  be  said  to  be  unlaw- 
ful. But  the  vice  of  the  injunctive  order  lies  in  the  fact  that  this 
word,  uiuiualified,  may  signify  a  lawful  act.  .   .  . 

The  experience  of  Captain  Boycott  has  added  to  our  language  a 
substantive  and  a  verb.  There  is  little,  if  any,  (piestion  as  to  the 
meaning  of  the  substantive,  but  there  is  no  commonly  accepted 
definition  of  the  verb.  Some  courts  have  defined  it  as  necessarily 
implying  violence,  or  intimidation,  or  the  threat  thereof;  others  as 
but  necessarily  implying  al)stention,  A  ma}'  refuse  to  trade  with  B 
unless  B  changes  a  certain  policy,  and  A  may  think  that  his  attitude 
is  necessary  for  his  own  welfare  and  protection.  It  cannot  be  con- 
tendetl  that  A  therel)y  offends  th3  law.  In  Mogul  Steamship  Co. 
V.  McCJregor,  Gow  ct  Co.  (00  L.  T.  Rep.  [x.  s.]  1)  Halsbury,  L.  C, 
says:  "Now  it  is  not  denied  and  cannot  l3e  even  argued  that,  prima 
facie,  a  trader  in  a  free  country  in  all  matters  '  not  contrary  to  law 
may  regulate  his  own  mode  of  carrying  it  on  according  to  his  own 
discretion  and  choice.'"  Judge  Cooley  in  his  work  on  Torts  (2d 
ed.,  p.  328)  says:  "It  is  a  part  of  every  man's  civil  rights  that  he 
be  left  at  liberty  to  refuse  business  relations  with  any  person  whom- 
soever, whether  the  refusal  rests  upon  reason  or  is  the  result  of  whim, 
caprice,  prejudice  or  malice.  With  his  reasons  neither  the  pul)lic 
nor  third  persons  have  any  legal  concern."  If  A  may  take  this  step, 
it  does  not  seem  logical  to  hold  that  A  and  C  togetlu>r  may  not,  and 
may  not,  by  argument,  persuasion  and  entreaty,  bring  D  and  E  to 
their  side.  If  A,  C,  D  and  E  cannot  do  what  A  alone  may  lawfully 
do,  the  vice  must  be  in  the  combination.  But  there  is  no  dissent 
in  our  highest  court  over  the  proposition  in  National  Protective 
Assn.  v.  Cumming  (supra),  tluit  "whatever  one  man  may  do  alone 
he  may  do  in  combination  with  others,  provided  they  have  no  un- 
lawful ()l)ject  in  view.     Mere  numbers  do  not  ordinarily  affect  the 


400  BOYCOTTS  [CHAP.  VII 

quality  of  an  act."  Parker,  C.  J.,  and  Vann,  J.,  are  in  accord 
(pp.  321,  338),  and  Gray,  J.,  the  other  judge  who  wrote  in  that 
ease,  has  expressl}'  affirmed  this  principle  in  his  dissent  in  Straus  v. 
American  Publishers'  Assn.  (177  N.  Y.  473,  491).  A's  attitude  may 
be  trivial  as  to  B,  when  that  of  the  combination  might  enforce  B's 
concessions,  but  this  affords  no  legal  reason  against  such  combina- 
tion. It  is  not  in  the  breast  of  the  coml  to  stamp  as  illegal  a  com- 
bination for  the  betterment  of  the  interests  of  the  members  thereof 
or  of  some  of  them,  and  which,  without  incidental  violence  or  in- 
timidation, severs  all  business  dealings  with  an  outsider  until  it  may 
secure  it.  If  this  be  illegal,  where  can  we  draw  the  line  so  as  to  coun- 
tenance association  to  insure  united,  and,  therefore,  effective  action 
to  right  what  seems  wrong,  or  to  correct  what  seems  an  abuse,  or 
to  mark  disapproval  of  some  policy  in  the  every  day  affairs  of  our 
social  life?  The  protest  of  one  under  threat  of  abstention  may  be 
unheeded  in  view  of  the  slightness  of  the  penalty,  when  a  like  pro- 
test of  many,  with  similar  threat,  is  effective,  and  only  because  the 
penalty  is  too  great  to  pay.  Lawful  and  concerted  protest  can  reg- 
ulate many  things  within  the  law  without  invoking  paternal  govern- 
ment. 

It  maj'  be  that  the  result  of  the  boycott  is  a  loss  to  him  proscribed. 
Else,  the  combination  would  fail  of  its  purpose.  But  when  the  result 
sought  by  a  boycott  is  to  protect  the  members  of  the  combination 
or  to  enhance  their  welfare,  that  loss  is  but  the  incident  of  the  act, 
the  means  whereby  the  ultimate  end  is  gained.  ...  I  think  that 
the  verb  "to  boycott"  does  not  necessarily  signify  that  the  doers 
employ  violence,  intimidation  or  other  unlawful  coercive  means, 
but  that  it  may  be  correctly  used  in  the  sense  of  the  act  of  a  combina- 
tion in  refusing  to  have  business  dealings  with  another  until  he 
removes  or  ameliorates  conditions  which  are  deemed  inimical  to 
the  welfare  of  the  members  of  the  combination,  or  some  of  them, 
or  grants  concessions  which  are  deemed  to  make  for  that  purpose. 
And  as  such  a  combination  may  be  formed  and  held  together  by 
argument,  persuasion,  entreaty  or  by  the  "touch  of  nature,"  and 
may  accomplish  its  purpose  without  violence  or  other  unlawful 
means,  i.  e.,  simply  by  abstention,  I  think  it  cannot  be  said  that  "to 
boycott"  is  to  offend  the  law.  (Bohn  Manufacturing  Co.  v.  Hollis, 
54  Minn.  223;  Sinsheimer  v.  United  Garment  Workers,  77  Hun,  215; 
Cook  Trade  &  Labor  Comb.  sec.  9,  p.  43;  1  Tiedeman  State  &  Fed- 
eral Control  of  Persons  &  Property,  440  ct  seq.;  Bowen  v.  Mathe- 
son,  14  Allen,  499;  Mogul  Steamship  Co.  v.  McGregor,  Gow  &  Co., 
L.  R.  23  Q.  B.  Div.  598;  affd.,  H.  of  L.,  66  L.  T.  Rep.  [n.  s.]  1; 
Marx  &  H.  J.  Clothing  Co.  v.  Watson,  168  Mo.  133,  56  L.  R.  A. 
951;  Ulery  v.  Chicago  Live  Stock  Exchange,  54  III.  App.  233,  240; 
State  V.  GUddcn,  55  Conn.  47;  Allen  v.  Flood,  supra;  Quinn  v.  Lea- 
thern, su-pra;  Park  &  Sons  Co.  v.  Nat.  Druggists'  Assn.,  175  N.  Y. 
1,  per  Haight  and  Cullen,  J.J.)  .  .  . 


SECT.  I]  PRIMARY   BOYCOTT  401 

The  discharK<'.s  in  tliis  case  are  the  result  of  tlie  aKreement  be- 
tween the  printing  company  and  tlie  union.  It  is  dear  enough  that 
the  company  made  this  agreement  in  order  to  end  the  strike  and 
the  boycott.  Thus,  the  defendants  secured  tlie  exclusive  employ- 
ment of  their  members,  an  adju.stment  of  wages  and  a  determination 
of  the  working  hours.  If  tiie  defendants  had  the  right  to  refu.s*  to 
work  for  the  printing  company  until  their  demands  were  nn-t,  I 
cannot  see  why  they  could  not  agree  that  they  would  work  (jnly 
under  conditions  which  repre.sent^'d  a  concession  of  such  demands. 
If  the  employer  preferred  to  have  these  workmen  work  for  him  on 
the  conditions  that  he  should  (•mi)loy  none  but  tlieir  fellows,  iricn-ase 
their  wages,  and  settle  the  hours  of  labor,  than  to  have  them  strike 
and  organize  a  boycott,  I  cannot  see  why  in  the  exercise  of  its  right 
to  regulate  its  own  affairs  it  could  not  follow  this  course  and  make 
the  agreement.  .  .    . 

I  said  at  the  outset  that  the  judgment  on  trial  may  be  far  dilTrr- 
ent  from  the  determination  upon  the  papers  now  before  us.  Tlic 
evidence  may  put  the  combination  within  the  prohibition  of  the 
principle  of  Curran  v.  Galen,  152  X.  Y.  33,  may  justify  an  injunction 
against  the  picketing  in  the  manner  of  its  doing,  against  the  boy- 
cotting in  the  methods  of  its  practice,  and  more.  But  as  I  think 
that  the  printing  company  is  free  to  discharge  the  plaintiffs  and 
their  other  workmen,  and  that  the  other  defendants  have  the  right 
to  organize  a  strike  and  to  picket  and  boycott  within  the  limitations 
which  I  have  sought  to  state  in  this  opinion,  and  that  the  record 
does  not  justify  a  retention  of  the  injunction  against  picketing  and 
boycotting,  with  specifications  and  limitations,  the  order  must  be 
modified  in  accord  with  these  views,  and  as  modified  must  be  affinned, 
without  costs.^ 

Hensh.^w,  J.,  IX  PIERCE  v.  STABLEMEN'S  UNION 

156  Cal.  70,  75  (1909) 

We  think,  moreover,  that  no  court  questions  the  right  of  those 
same  men  to  cease  dealing  by  concerted  action,  either  socially  or  by 
way  of  business,  with  their  former  employer,  and  this  latter  act,  in 
its  essence,  constitutes  the  primary  boycott.- 

1  This  decision  was  affirmed  (without  opinion)  in  the  Appellate  Division, 
12S  App.  Div.  889,  890,  and  was  subsequently  affirmed  by  the  Court  of  Appeals, 
199  N.  Y.  76,  supra,  p.  338. 

"  The  most  cjisual  observation  will  disclose  that  scarcely  any  two  courts  treat- 
ing of  the  subject  [i.  e.,  the  boycott]  formulate  the  same  definition."  —  Per  Hal- 
loway,  J.,  in  Lindsay  v.  Montana  Fed.  of  Labor,  37  Mont.  2M,  272.  "  But  the 
word  [i.  e.,  boycott]  is  of  vaKue  signification,  and  no  accurate  and  exclusive  defini- 
tion has,  so  far  as  I  know,  ever  been  given."  —  Per  Hough,  J.,  in  Gill  Engraving 
Co.  V.  Doerr,  214  Fed.  Ill,  US. 

»  Accord:  C'artwright,  J.,  in  Wilson  v.  Hey.  232  111.  389,  396  (holding  a  second- 
arj'  boycott  illegal):  "  It  is  not  WTong  for  members  of  a  union  to  cease  patroniz- 
ing any  one  when  they  regard  it  for  their  interest  to  do  so,  but  they  have  no 


402  BOYCOTTS  [CHAP.  VII 

Sir  Charles  Russel  —  Opening  Speech  before  the  Parnell  Com- 
mission. [The  charge  against  the  Irish  Land  League  was  of  con- 
spiring to  encourage  agrarian  outrage.  The  League  admitted  that 
it  had  encouraged  boycotting  in  the  simple  sense,  and  claimed  a 
distinction  between  lawful  boycotting  and  unlawful  violence.]  My 
lords,  in  this  matter  of  boycotting,  may  I  be  forgiven  for  using  the 
celebrated  exclamation  of  Dr.  Johnson,  and  say,  "  Let  us  clear  our 
minds  of  cant."  Boycotting  has  existed  from  the  earliest  times  that 
human  society  existed.  It  is  only  a  question  of  degree.  Up  to  a 
certain  point,  boycotting  is  not  only  not  criminal,  but  I  say  is  jus- 
tifiable and  is  right.  For  what  docs  boycotting  mean?  It  means 
the  focusing  of  the  opinion  of  the  community  in  condeinnation  of 
the  conduct  of  an  individual  of  that  community  who  offends  the 
general  sense  of  proprietj^,  or  offends  against  its  general  interests. 
Is  there  no  boj^cotting  at  the  bar?  Is  there  no  boycotting  in  the 
other  professions?  Is  there  no  boycotting  in  the  church?  Is  there 
no  boj'cotting  in  politics?  Is  there  no  bo3'cotting  of  tradesmen  in 
election  times?  What  is  the  meaning  of  ''sending  a  man  to  Coven- 
right  to  compel  others  to  break  off  business  relations  with  the  one  from  whom 
they  have  withdrawn  their  patronage,  and  to  do  this  by  unlawful  means,  with 
the  motive  of  injuring  such  person." 

Scott  AND  Farmer,  JJ.,  in  the  same  case,  p.  399  (dissenting  in  respect  to 
other  points):  "The  law  is  that  an  individual  may  refrain  from  trading  or  deal- 
ing with  any  particular  person,  and  that  two  or  more  individuals  may  agree 
among  themselves  that  they  will  not  trade  or  deal  with  a  certain  person,  and 
may  give  notice  to  others  that  they  have  made  such  an  agreement.  (Common- 
wealth V.  Hunt,  4  Mete.  Ill;  Bowen  v.  Matheson,  14  Allen,  499;  Macauley  v. 
Tierney,  19  R.  I.  225;  Bohn  Manf.  Co.  v.  HoUis,  54  Minn.  223;  Cote  v.  Murphy, 
159  Pa.  420;  Longshore  Printing  Co.  v.  Howell,  26  Ore.  527;  National  Protective 
A.ssn.  V.  Cumming,  170  N.  Y.  315;  18  Am.  &  Eng.  Ency.  of  Law,  2d  ed.,  p.  87.) 
Appellants  did  nothing  more." 

Sutherland,  J.,  in  People  v.  McFarlin,  89  N.  Y.  Supp.  527,  531:  "In  so  far 
as  the  threats  against  the  manufacturers  were  confined  to  the  withdrawal  of  the 
union  men  from  their  employ  and  the  withdrawal  of  all  business  relations  and 
intercourse  between  the  union  men  and  said  manufacturers  unless  their  de- 
mands were  complied  with,  no  law  was  violated,  and  no  illegal  act  threatened." 

Taft,  J.,  in  Toledo,  A.  A.  &  N.  M.  Ry.  Co.  v.  Penna.  Co.,  54  Fed.  730,  738:  "  .  .  . 
It  is  generally  lawful  for  the  combiners  to  withdraw  their  intercourse  and  its  bene- 
fits from  any  person  and  to  announce  their  intention  of  doing  so.  .  .  ." 

Mitchell,  J.,  in  Bohn  Manufacturing  Co.  v.  HoUis,  54  Minn.  223,  234:  "It 
Is  perfectly  lawful  for  any  man  (unless  under  contract  obligation,  or  unles.8  his 
employment  charges  him  with  some  public  duty)  to  refuse  to  work  for  or  to  deal 
with  any  man  or  class  of  men,  as  he  sees  fit.  .  .  .  And  .  .  .  the  right  which 
one  man  may  cxerci.se  singly,  many,  after  consultation,  may  agree  to  exercise 
jointly,  and  make  simultaneous  declaration  of  their  choice." 

Chapman,  C.  J.,  in  Carew  v.  ]iuthcrford,  10()  Mass.  1,  14:  "Every  man  has  a 
right  to  .  .  .  refu.sc  to  deal  with  any  man  or  class  of  men.  And  it  is  no  crime 
for  any  number  of  persons,  wil  liout  an  unlawful  ol)ject  in  view,  to  associate  them- 
selves together  and  agree  that  they  will  not  work  for  or  deal  with  certain  men  or 
cla.s.ses  of  men,  or  work  under  a  certain  i)rice,  or  without  certain  conditions." 

(compare  the  definition  of  the  primary  Iwycott  laid  down  by  Pitney,  J.,  in 
the  ca.se  of  Duplex  Printing  Press  Co.  v.  Decring,  254  U.  8.  443,  at  p.  460,  infra, 
p.  443. 


SECT.  II]  SECONDAKY    UOVCOTr  403 

try"?  I  say  that  Iwycottiiif; — I  am  not  justifying  intiniiflation, 
I  nm  not  justifying  force,  I  am  not  justifyint^  violence  in  connection 
with  it:  those  are  ciilTerent  things  —  I  am  talking  of  an  act  of  moral 
reprehension  called  boycotting,  und  I  sa}'  it  always  has  existed  and 
always  will  exist.  My  lords,  if  I  were  to  search  ancient  records, 
historical,  sacretl  records,  I  could  point  to  many  instances  of  boy- 
cotting; but  I  need  ncjt  jj;o  far  l)ack.  We  have  had  in  our  days  very 
remarkal)le  instances,  n(jt  only  of  boycotting,  but  of  effective  and 
useful  boycotting.' 


Section  2.     Secondary  Boycott  by  Means  of  Coercion 

HEYWOOD  V.  TILLSON 
Sri'UEMK  JuDici.\L  Court  of  M.\ine.     1883 

75  Afe.  225 

Appleton,  C.  J.  This  is  an  action  on  the  case.  The  plaintiff  in 
his  writ  alleges  that  on  l)eceml)er  19,  1875  he  was  seized  of  a  dwelling 
house  on  Hurricane  Island  of  gretit  value,  yielding  an  annual  rent 
of  one  hundred  dollars  which  he  should  be  receiving,  were  it  not  for 
the  wrongful  act  of  the  defendant,  and  ought  to  receive  from  one 
Charles  H.  Sanborn  and  other  tenants;  that  he  leased  the  dwelling 
house  and  premises  to  said  Sanborn  for  the  term  of  one  year,  which 
sum  said  Sanborn  was  willing  to  pay;  that  the  defendant  was  the 
occupant  and  owner  of  said  Hurricane  Island,  and  engaged  in  quarrry- 
ing,  cutting  and  working  granite,  and  shipping  the  same  to  market; 
that  there  was  no  opportunity  to  lease  any  building,  except  to  those 
in  the  defendant's  employ;  yet  the  defendant  knowing  this  and  to 
deprive  the  plaintiff  of  the  rents  and  profits  arising  therefrom,  did 
on  December  29,  1875,  order  and  direct  the  said  Sanborn  to  pay 
him  only  twenty  dollars  a  year,  instead  of  ninety-six  dollars,  and 
threatened  to  discharge  said  Sanborn  if  he  did  not  comply  with  his 
order;  by  means,  whereof,  the  plaintiff  received  but  one  dollar  and 
sixty-seven  cents  per  month,  instead  of  eight  dollars;  that  after- 
wards on  August  1,  1876,  said  Tillson  ordered  and  directed  said 
SanlKirn  to  leave  said  dwelling  house  and  refused  to  allow  him  to 
remain  therein,  and  threatened  to  discharge  him  from  his  employ- 
ment, unless  he  should  leave  said  dwelling  house;  and  that  the  said 
Tillson  threatened  to  discharge  any  and  all  persons  from  his  fm- 
ployment,  and  expel  them  from  the  island,  who  should  occupy  said 
premises  and  become  tenants  of  the  plaintiff.  —  l)y  means  of  which 
orders,  threats  and  tlirections,  the  said  Sanborn  was  induced  to  and 
did  leave  the  premises,  and  refused  to  pay  for  the  use  of  the  siimc, 
and  to  occupy  the  same,  —  wiiereby  the  plaintiff  has  l>een  unable 

1  Qviotcd  in  Wij^inore's  Ca.«<c.s  on  Tort^,  vol.  2,  p.  339.  See  other  interesting 
passages  and  examples  of  boycotts  in  ibid.,  pp.  329-340. 


404  BOYCOTTS  [CHAP.  VII 

to  rent,  lease  or  sell  said  dwelling  house,  and  has  lost  all  benefit 
from  the  same.  .  .  . 

The  defendant  is  the  owner  of  Hurricane  Island,  has  extensive 
quarries  there,  doing  a  large  business,  having  important  contracts 
with  the  govermnent,  and  six  hundred  men  in  his  employ. 

The  plaintiff  went  into  the  defendant's  employ  as  a  stone  cutter 
in  1873,  and  purchased  the  house  referred  to  in  the  declaration, 
in  the  fall  of  1874,  for  two  hundred  and  fifty  dollars,  and  was  dis- 
charged in  October,  1875.  He  testified  that  he  ''made  no  attempt 
to  injure  General  Tillson,  previous  to  his  (my)  discharge";  that  he 
"had  been  taking  notes  in  regard  to  the  management  of  the  job," 
and  was,  "going  to  keep  the  notes  in  case  the  job  was  ever  investi- 
gated"; that  he  "furnished  information  to  the  newspapers  in  re- 
gard to  the  management  of  the  government  works";  wrote  articles 
in  the  Boston  Herald  and  The  Rockland  Opinion;  that  when  the 
latter  paper  was  indicted  for  a  libel  growing  out  of  the  articles,  he 
was  here  two  weeks  in  procuring  witnesses  for  the  publisher;  that 
he  said  he  considered  the  defendant  a  damned  scoundrel,  that  he  so 
testified,  on  the  trial  of  the  indictment,  and  that  he  "so  considers 
him  now." 

The  house  was  built  on  defendant's  land,  by  verbal  permission 
of  his  clerk.  .  .  . 

The  house  was  not  leased  for  the  year.  It  was  personal  property. 
The  plaintiff  was  not  seized  of  it.  Sanborn  testifies  that  the  plain- 
tiff rented  the  house  to  him  "for  eight  dollars  a  month,  so  long  as 
he  (I)  saw  fit  to  occupy  it,"  that  he  went  into  the  house  in  October, 
1875,  and  left  in  August,  1876,  and  that  the  amount  he  "paid  Hoy- 
wood  was  in  the  neighborhood  of  eighty  dollars."  The  plaintiff 
nowhere  alleges  that  he  did  not  receive  the  rent  as  stipulated  from 
Sanborn.  The  only  evidence  of  ordering  out  is,  what  is  testified  to 
by  Sanborn;  that  "he  said  he  did  not  wish  to  injure  me  (Sanborn), 
but  the  man  that  lived  in  Hcywood's  house  could  not  work  for  him." 
But  this  constitutes  no  ordering.  It  was  what  he  had  a  right  to  say. 
It  did  not  interfere  with  letting  to  others. 

As  the  house  was  rented  to  Sanborn  by  the  month,  as  "long  as  he 
saw  fit  to  occupy  it,'^  the  contract  was  terminable  at  the  option  of 
Sanborn.  He  could  terminate  it  when  and  for  what  reason  he  saw 
fit.  The  plaintiff  could  not  complain  of  its  termination,  no  matter 
how  unreasonable  it  might  be.  He  had  no  contract  with  Sanborn 
that  he  should  remain.  He  might  remain  or  not.  In  Hutchins  v. 
Hutchins,  7  Hill,  104,  the  defendants,  after  a  will  was  made,  devising 
certain  real  estate  to  A,  conspired  to  induce  the  testator  to  revoke 
it,  and  effected  their  object  by  means  of  false  and  fraudulent  repre- 
sentations: H(!ld,  that  A,  could  not  maintain  an  action,  as  the  rev- 
ocation of  the  will  merely  deprived  him  of  an  expected  gratuity, 
without  interfering  with  any  of  his  rights.  So,  here,  no  rights  were 
interfered  with.     Tli(>re  was  no  obligation  on  the  tenant  to  remain. 


SECT.  II]  SECONDARY    BOYCOTT  405 

None  on  the  lumllord  to  permit  him  to  remain.  All  there  is,  the 
tenant  did  not  renew  his  contract.  W'liy  lie  did  not  is  no  concern 
of  th(;  hmdlord.  Tlie  tenancy  wa.s  at  will.  The  e.\erci.s<;  of  that  will 
wa.s  the  e.\(;rcise  of  a  perfect  rij^ht.  The  motive  which  induced  that 
exercise,  can  be  no  j^round  of  complaint,  whether  it  was  the  chance 
of  bettering  hi.s  condition,  to  ^nitify  a  whim  of  his  own  or  the  ill 
will  of  aiKjthei-.  Th<'  landlord  cannot  ccjmplain  that  a  tenant  de- 
clines to  renew  his  lease.  If  Saiibc^in  violatecl  any  contract,  he  is 
liable  to  the  i>laintilf  in  damages. 

Besides,  an  employer  has  a  vital  interest  in  the  welfare  of  his 
men.  He  has  a  right  to  sec  that  they  are  not  |)lundered.  It  was 
a  perfectl}'  proper  nujtive  for  the  defendant  to  interpo.se  to  prevent 
an  extortionate  rent,  as  that  of  one  hundred  dollars  a  year  for  a 
shanty  costing  but  two  hundred  and  fifty  dollars.  His  own  interest 
and  his  interest  in  the  success  of  his  employees,  without  the  impu- 
tation of  anything  sinister  on  his  pait,  alTord  good  and  suflieient 
reasons  for  his  intervention. 

The  question  raised  is,  whether  the  defendant  is  liable  in  dam- 
ages to  a  landlord  for  a  tenant's  leaving,  or  for  one  or  many  declin- 
ing to  become  or  not  becoming  tenants  in  consequence  of  his  threats 
that  he  would  employ  no  one  who  should  Ijecome  such  landlortl's 
tenants,  or  being  his  tenants  should  continue  to  remain  such.  .  .  . 

The  employer,  as  he  maj''  by  contract  stipulate  with  his  men 
where  they  shall  not  board,  may  equally  determine  where  and  of 
whom  they  may  rent  the  houses  they  may  occup>',  and  where  they 
may  not.  Tiie  hou.sc  may  be  in  an  unhealthy  part  of  the  city,  or  a 
disreputable  neighborhood.  But  whatever  the  reason,  good,  bad 
or  indifferent,  no  one  has  a  right  to  complain. 

The  owner  has  no  cause  of  complaint  when  one  says  he  will  not 
occupy  his  house,  nor  when  another  says  he  will  refrain  from  doing 
an  act  if  it  be  occupied.  The  defendant  was  under  no  obligation  — 
owed  no  duty  to  the  plaintiff  that  he  should  permit  his  men  to  oc- 
cupy his  house  any  more  than  to  a  boarding  house  keeper,  that  he 
shoukl  peiniit  his  men  to  board  with  him.  The  itlea  of  a  boariling 
house  keeper  suing  a  man  ijccause  he  tledines  or  refuses  to  employ 
his  boartlers,  or  the  owner  of  a  house,  becau.se  he  will  not  employ 
his  tenants,  is  utterly  at  variance  with  the  right  of  individuals  to 
make  their  own  contracts.  A  landlonl  has  no  right  of  action  against 
an  employer  of  men,  because  he  refuses  to  employ  his  tenants  or 
boarders.  Nor  are  his  rights  enlarged  becau.se  the  rea.son  of  such 
refusal  is,  that  they  are  his  tenants  or  boarders. 

Neither  is  the  employer  liable  if  having  the  tenantxS  or  l)oarders 
of  a  landlord  in  his  employ,  he  discharges  them  from  his  service 
because  they  choo.se  to  remain  such  tenants  or  l)oardei-s,  having 
the  right  by  his  contract  with  them  to  terminate  their  .-services.  .  .  . 

The  defendant  had  an  absolute  right  to  employ  or  not  to  employ, 
a  tenant  of  the  plaintiff,  and  no  action  would  be  maintained  against 
him  if  he  chose  not  to  do  it. 


406  BOYCOTTS  [CHAP.  VII 

Threatening  not  to  employ  such  tenant  affords  no  ground  of  action 
on  the  part  of  the  landlord.  A  threat  to  commit  an  injury  is  "not 
an  actionable  private  wrong."  Cooley  on  Torts,  29.  It  is  only  the 
promise  of  doing  something  which  in  the  future  may  be  injurious. 
It  may  never  be  carried  into  effect.  It  cannot  be  foreknown  that  it 
will  be.  .  .  . 

So  far  as  relates  to  the  case  of  Sanborn,  who  was  a  tenant  by  the 
month,  the  stipulated  rent  was  fully  paid,  and  the  tenant  left  as 
he  had  a  right  to  do.  He  left  because  defendant  would  not  employ 
one  of  the  plaintiff's  tenants.  The  defendant  had  a  right  to  impose 
that  condition.    The  tenant  had  a  right  to  his  preference.  .  .  . 

There  is  no  proof  of  any  wrong  done  —  of  any  legal  damage  — 
or  of  any  facts  for  or  on  account  of  which  any  damages  could  be 
assessed  —  unless  threatening  to  do  what  a  man  has  a  perfect  right 
to  do,  will  constitute  a  sufficient  foundation  for  an  action.  If  any 
wrong  was  done,  it  was  by  the  tenant  in  leaving;  and  if  he  has  broken 
any  contract,  or  violated  any  rights  of  the  plaintiff,  he  alone  is  re- 
sponsible for  his  misfeasance.  Plaintiff  nonsuit } 


DUNLAP'S  CABLE  NEWS  CO.  v.  STONE 

Supreme  Court  of  New  York.     1891 

15  N.  Y.  Supp.  2 

Appeal  from  special  term.  New  York  county. 

Action  for  injunction  by  Dunlap's  Cable  News  Co.,  a  corporation 
existing  under  the  laws  of  New  Jersej'^,  and  engaged  in  the  business 
of  collecting  news,  and  furnishing  the  same  to  all  newspapers  which 
may  apply  therefor,  against  David  M.  Stone,  as  president  of  the  New 
York  Associated  Press,  an  unincorporated  association,  existing  under 
the  laws  of  New  York,  also  engaged  in  the  business  of  collecting  news 
and  furnishing  the  same  to  the  newspapers.  The  prayer  of  the  com- 
plaint was  "for  judgment  against  the  defendant,  and  said  New 
York  Associated  Press,  its  officers,  agents,  or  servants,  enjoining 
them,  and  each  of  them,  from  addressing  any  communications  or 
letters  to  any  newspapers,  their  publishers  or  editors,  threatening 
to  withdraw,  and  also  from  withdrawing,  the  services  of  said  New 
York  Associated  Press  to  said  newspapers  in  case  they  continue  to 

1  Accord:  Raycroft  v.  Tayntor,  68  Vt.  219  (threat  by  defendant  to  revoke 
L's  license  to  cut  stone  from  defendant's  fiuarry  unless  L  would  discharge  plain- 
tiff employee);  Payne  v.  Western,  etc.,  Railroad  Co.,  13  Lea  (Tenn.),  .507  (threat 
by  defendant  railway  company  to  discharge  any  of  its  employees  who  should 
patronize  store  of  plaintiff,  in  order  to  coerce  plaintiff  into  complying  with  de- 
fendant's wishes);  Cote  v.  Murphy,  159  Pa.  St.  420  (threat  by  defendants,  em- 
ployers, not  to  sell  building  material  to  any  building  contractor  who  conceded  to 
employees  the  advance  in  wages  they  were  demanding,  i.  e.,  secondary  boycott 
by  employers  against  employees).  See  also,  Scottish  Co-operative  Society  v. 
Glasgow  Fleshers'  Assn.,  35  Scottish  L.  Rep.  645. 


SECT.  II]  SECONDARY   BOYCOTT  407 

avail  tlit'inselves  of  tlu;  services  of  this  pluintitT;  and  that  th<\v  furtlier 
be  tiirectod  to  withdraw  and  countorinand  such  as  liave  already 
been  sent;  and  that  the  New  York  Associated  Press  Ix'  further  en- 
joined from  enfon-inK,  <Ji"  attempting  to  enfoice,  in  any  mode  or  man- 
ner whatsoever,  the  said  by-law  in  any  way  unlawfully  interfering 
with  the  business  of  this  plaintiff;  and  for  such  other  and  further 
relief  as  the  court  may  deem  proiK'r,  Ix'sides  the  costs  and  disburse- 
ments of  this  action."  TIk;  by-law  or  rule  of  the  New  York  Asso- 
ciated Press  referred  to  was  to  the  effect  that  none  of  the  meml>ers 
should  enter  into  any  arraiif^ement  for  taking;  news  hoin  other  news 
agencies.  PlaintilT  alleged  that  the  business  ent^aged  in  by  the  parties 
was  "a  public  business,  and  that  both  plaintiff  and  the  said  New 
Y(jrk  Associatetl  Press  are  therefore  under  an  obligation  to  serve 
the  entire  j)ublie;  and  tiiat  it  is  essential  for  the  proper  conduct  cf 
a  newspaper,  and  for  tiie  interests  of  its  readers,  sui)scril)ers,  and  ad- 
vertisers, and  for  the  interest  of  the  puljlic,  that  such  newspaper 
should  be  at  lilx^rty  to  avail  it.self  of  all  .sources  of  information,  and 
combine,  if  it  thinks  l)est,  the  intelligence  and  information  furnished 
by  the  various  agencies  instituted  for  that  purpose."  The  New 
York  Associated  Press  directed  such  of  its  memljcrs  as  were  sub- 
scribers to  plaintiff's  system  to  discontinue  plaintiff's  service,  on 
the  ground  that  it  was  a  violation  of  the  rules  of  the  A.ssociatcd 
Press.  A  motion  for  an  injunction  pendenlc  lite  was  denied,  and 
plaintiff  appeals. 

Bakkett,  J.  The  plaintiff's  application  amounted  to  nothing 
more  nor  less  than  an  attempt  to  restrain  the  defendants  from  trans- 
acting their  lawful  business  in  their  own  way,  lest  in  doing  so  the 
plaintiff's  lival  business  should  be  injured  or  diminished.  The  de- 
fendants have  a  perfect  right  to  limit  the  sale  of  the  news  which 
they  collect  to  those  who  contract  to  deal  exclusively  with  them. 
They  are  private  individuals,  dealing,  it  is  true,  with  a  large  pul)lic, 
but  governed  l)y  no  corporate  duty  or  statutory  obligation.  They 
certainly  owe  no  duty  to  the  plaintiff,  which  is  a  foreign  corjiora- 
tion,  attempting  to  compete  with  them,  and  with  whom  they  have 
no  privity  or  relations  of  any  kind.  When  one  of  the  defendants' 
customers  comes  forward  as  a  suitor,  it  will  be  time  enough  to  con- 
sider whether  such  customer  can  with  impunity  violate  his  contract, 
and,  while  dealing  with  the  plaintiff,  demand  a  continuance  of  the 
defendants'  services.  It  certainly  is  an  extraordinary  demanil  on 
the  part  of  a  competitor  that  the  defendants  be  enjoined  from  en- 
forcing their  agreements  with  their  customers,  or  from  refusing  to 
accept  new  customers,  without  the  ortlinary  limitation  as  to  exclu- 
sive dealing.  The  plaintiff  has  no  standing  to  maintain  such  an 
action,  and  its  complaint  is  devoid  of  eciuity.  It  may  be  added  that 
the  injunction  sougiit  was  almost  in  the  precise  terms  of  the  prayer 
for  relief,  and  the  granting  of  it  would  have  been  ecpiivalent  to  final 
judgment  before  trial.     Sucii  an   injunctioii   is  oiil\-  granted   in  an 


408  BOYCOTTS  [CHAP.  VII 

extreme  case,  and  where  the  right  is  absolutely  clear.  No  such  case 
has  here  been  presented,  but  rather  the  reverse.  The  application 
for  an  injunction  pendente  lite  was  therefore  without  merit,  and 
was  properly  refused. 

The  order  appealed  from  should  be  affirmed,  with  costs. 


MACAULEY  BROTHERS  v.  TIERNEY 

Supreme  Court  of  Rhode  Island.     1895 

19  R.  I.  255 

Bill  in  equity  for  an  injunction. 

October  28,  1895.  Matteson,  C.  J.  The  complainants  are  mas- 
ter plumbers  engaged  in  the  business  of  plumbing.  In  the  transac- 
tion of  their  business  they  have  been  accustomed,  and  are  obliged, 
to  purchase  from  time  to  time  materials  from  wholesale  dealers  in 
Rhode  Island  and  other  parts  of  the  United  States,  and,  among 
others,  from  L.  H.  Tillinghast  &  Co.,  of  Providence,  who  with  the 
New  England  Supply  Co.  are  the  only  wholesale  dealers  in  plumb- 
ing materials  in  this  State. 

The  respondents  are  also  master  plumbers  and  officers  and  mem- 
bers of  the  Providence  Master  Plumbers'  Association,  a  voluntary 
association  affiliated  with  the  National  Association  of  Master  Plumb- 
ers of  the  United  States  of  America. 

The  latter  association,  on  June  26,  1894,  at  Baltimore,  in  con- 
vention assembled,  adopted  resolutions  that  they  would  withdraw 
their  patronage  from  any  firm  manufacturing  or  dealing  in  plumb- 
ing material  selling  to  others  than  master  plumbers;  that  the  mas- 
ters should  demand  of  manufacturers  and  wholesale  dealers  in  plumb- 
ing material  to  sell  goods  to  none  but  master  plumbers;  that  the 
association  should  keep  a  record  of  all  journeymen  and  plumbers 
who  place  in  buildings  plumbing  material  bought  by  consumers  of 
manufacturers  or  dealers;  that  a  committee  be  appointed  by  the 
association  in  every  state  and  county  for  the  purpose  of  reporting 
to  the  proper  officers,  at  its  head  in  the  state,  any  violations  of  these 
resolutions;  that  the  convention  urge  upon  the  association  to  per- 
fect and  adopt  a  uniform  system  of  protection  for  the  trade  over 
their  entire  jurisdiction.  Subsequently  a  resolution  of  amendment 
was  adopted,  at  St.  Louis,  that  the  interpretation  of  the  resolutions 
be  left  in  the  hands  of  the  Executive  Committee  with  power.  Still 
later  a  resolution  was  adopted  at  Washington  "that  it  is  the  sense 
of  this  convention  that  in  the  future  the  interpretation  of  the  term 
of  '  master  plumber/  as  set  forth  in  the  above  resolutions,  to  en- 
title him  to  purchase  plumbing  material,  be  construed  to  mean 
master  plumbers  that  have  qualified  under  state  or  local  enactments 
where  such  exist." 


SECT.  II]  SECONDARY    BOYCOrT  409 

It  is  alleged  by  the  coinphiintints  that  the  interpretation  put  by 
the  Executive  Committee  of  the  National  Association  on  these  reso- 
lutions is  that  those  only  are  to  Ix'  rcgardetl  as  master  pluml>erH 
who  are  members  of  the  National  Association,  or  memlnTs  of  the 
several  local  associations  afliliatcd  with  the  National  Association; 
that  the  complainants  have  been  informed  by  various  wholesale 
dealers  in  plumbing  materials  in  the  I'nited  States  outside  of  this 
state  that  they  will  not  sell  them  sujjplies  unless  they  shall  j(jin  the 
Providence  Master  Plumbers'  Association,  and  that  tlu'se  dealers 
are  forced  to  refuse  to  sell  them  supplies  Ix'cause  of  the  resolutions 
referred  to  and  the  interpretation  put  upon  them  by  the  Executive 
Committee  of  the  National  Assf)ciation,  and  because  of  the  action 
of  the  Providence  Master  Plumlx'rs'  Ass(;ciation  in  causing  such 
dealers  to  be  notified  not  to  sell  to  the  complainants  under  the  jM-nalty, 
in  case  of  their  continuing  to  do  so,  of  not  selling  to  any  memlxT 
of  the  association;  that  the  Providence  Master  Plumlx^rs'  Associa- 
tion, acting  through  th(^  respondents,  has  issued  notice  to  L.  H.  Til- 
linghast  A:  Co.  and  the  New  Mngland  Supi)ly  Co.  to  sell  suj)plies  to 
none  but  memlx'rs  of  the  association,  and  that  in  consecjuence  of 
these  notices  these  wholesale  dealers  have  notified  the  complainants 
and  other  master  plumbers  that  they  will  not  sell  plumbing  materials 
to  plumbers  not  meml)ers  of  the  Master  Plumbers'  Associations  in 
the  places  in  which  they  do  a  pluml)ing  business,  or  members  of  the 
National  Association ;  and  that  since  the  date  limited  in  the  notices 
these  dealers  have  refused  to  sell  to  the  complainants,  and  that  they 
have  been  unable  to  purchase  supplies  from  them  and  from  other 
wholesale  dealers  in  the  United  States  because  they  are  not  mem- 
bers of  the  Providence  Master  Plumbers'  Association. 

The  bill  charges  that  the  Providence  Master  Plumbers'  Associa- 
tion and  the  National  Association  have  conspired  together  to  pre- 
vent the  complainants  from  buying  supplies  anywhere  in  the  United 
States,  and  utterly  to  ruin  their  business,  unless  they  will  submit  to 
the  conditions  of  memlx?rship  in  and  become  members  of  the  Prov- 
idence Master  Plumbers'  Association;  avers  that  the  business  of 
the  complainants  will  be  irremedial)ly  ruined  unless  the  respondents 
are  enjoined  from  further  action  and  are  comjx'lletl  to  rescind  the 
action  which  they  have  already  taken,  and  prays  that  the  respontl- 
ents  may  be  directed  to  rescind  the  notices  given  and  all  onlers  and 
requests,  both  oral  and  written,  to  any  and  all  dealers  in  phunbers' 
suppli(>s,  not  to  trade  witii  such  dealers  unless  they  shall  refuse  to 
sell  supplies  to  any  but  members  of  such  associations,  and  to  rescind 
and  withdraw  any  and  all  orders  and  requests  to  the  National  Asso- 
ciation to  prevent  wholesale  dealers  outside  of  the  State  of  Rhode 
Island  from  selling  supplies  to  the  complainants,  and  that  the  re- 
spondents may  i)e  enjoined  from  all  further  interference  with  the 
complainant-s  by  notifying  such  dealers  not  to  sell  to  them,  or  by 
further  requests  to  said  National  Association  to  prevent  them  fn»ni 


410  BOYCOTTS  [CHAP.  VII 

buying  supplies  anywhere  in  the  United  States.  Testimony  has  been 
submitted  by  the  complainants  tending  to  prove  the  allegations  of 
the  bill.  Assuming  that  the  allegations  are  fully  sustained  by  the 
proof,  have  the  complainants  made  a  case  entitling  them  to  relief? 
We  think  not. 

The  complainants  proceed  on  the  theory  that  they  are  entitled 
to  protection  in  the  legitimate  exercise  of  their  business;  that  the 
sending  of  the  notices  to  wholesale  dealers  not  to  sell  supplies  to 
plumbers  not  members  of  the  association,  under  the  penalty,  ex- 
pressed in  some  instances  and  implied  in  others,  of  the  withdrawal 
of  the  patronage  of  the  members  of  the  associations  in  case  of  a 
failure  to  comply,  was  unlawful,  because  it  was  intended  injuriously 
to  affect  the  plumbers  not  members  of  the  association  in  the  conduct 
of  their  business,  and  must  necessarily  have  that  effect.  It  is  doubt- 
less true,  speaking  generally,  that  no  one  has  a  right  intentionally 
to  do  an  act  with  the  intent  to  injure  another  in  his  business.  In- 
jury, however,  in  its  legal  sense,  means  damage  resulting  from  a 
violation  of  a  legal  right.  It  is  this  violation  of  a  legal  right  which 
renders  the  act  wrongful  in  the  eye  of  the  law  and  makes  it  action- 
able. If,  therefore,  there  is  a  legal  excuse  for  the  act  it  is  not  wrong- 
ful, even  though  damage  may  result  from  its  performance.  The 
cause  and  excuse  for  the  sending  of  the  notices,  it  is  evident,  was  a 
selfish  desire  on  the  part  of  the  members  of  the  association  to  rid 
themselves  of  the  competition  of  those  not  members,  with  a  view 
to  increasing  the  profits  of  their  own  business.  The  question,  then, 
resolves  itself  into  this:  Was  the  desire  to  free  themselves  from 
competition  a  sufficient  excuse  in  legal  contemplation  for  the  sending 
of  the  notices? 

We  think  the  question  must  receive  an  affirmative  answer.  Com- 
petition, it  has  been  said,  is  the  life  of  trade.  Every  act  done  by  a 
trader  for  the  purpose  of  diverting  trade  from  a  rival  and  attracting 
it  to  himself  is  an  act  int(Mitionally  tlonc  and,  in  so  far  as  it  is  suc- 
cessful, to  the  injury  of  tlie  rival  in  his  business,  since  to  that  extent 
it  lessens  his  gains  and  profits.  To  hold  such  an  act  wrongful  and 
illegal  would  be  to  stifle  competition.  Trade  should  be  free  and  un- 
restricted; and  hence  every  trader  is  left  to  conduct  his  business 
in  his  own  way,  and  cannot  be  held  accoinitable  to  a  rival  who  suf- 
fers a  loss  of  profits  by  anything  he  may  do,  so  long  as  the  methods 
he  employs  are  not  of  the  class  of  which  fraud,  misrepresentation, 
intimidation,  coercion,  obstruction  or  molestation  of  the  rival  or 
his  servants  or  workmen,  and  the  procurement  of  violation  of  con- 
tractural  relations,  are  instances.  A  leading  and  well  considered 
case  on  this  subject  was  the  Mogul  Steamship  Co.  v,  McGregor, 
L.  R.  23  Q.  B.  598;  L.  R.  (1892)  App.  Cas.  25.  .  .  . 

The  case  at  l)ar  contains  no  clcnHMit   of  the  character  of  those 


SECT.  II]  SECONDARY   BOYCOTT  4 1  1 

enunioratod  by  the  Lord  Justice  *  which  Jirc  fc^rl^itUlr-n  by  hiw,  un- 
less tlie  tlu-eat  of  tlie  witluimwal  of  {xitronagc  may  be  considered  Jis 
amounting  to  coercion.  We  do  not  think,  however,  that  such  a 
threat  can  be  regarded  as  coercive  within  a  legal  sense;  for,  though 
coercion  may  be  exerted  by  the  application  of  moral  :is  well  as  physical 
force,  the  moral  force  exerted  by  the  threat  was  a  lawful  exercise 
by  the  members  of  the  associations  of  their  own  rights,  and  not  the 
exercise  of  a  force  violative  of  the  rights  of  others  as  in  the  cases 
cited  by  the  Lord  Justice.  It  was  perfectly  competent  for  the  mem- 
bers of  the  association,  in  the  legitimate  exercise  of  their  own  busi- 
ness to  bestow  their  patronage  on  whomsoever  they  chose,  and  to 
annex  anj'  condition  to  the  bestowal  which  they  saw  fit.  The  whole- 
sale dealers  were  free  to  comply  with  the  condition  or  not,  as  they 
saw  fit.  If  they  valued  the  patronage;  of  the  members  of  the  asso- 
ciations more  than  that  of  the  n(jn-members,  tii<!y  would  douJjtless 
comply;  otiicrwise  they  woidd  not. 

Closely  analogous  to  the  ca.se  at  l)ar  was  the  recent  case  of  Bohn 
Mfg.  Co.  V.  HoUis,  54  Minn.  223.  .  .  .  See  also  Paine  v.  Western 
&  Atlantic  K.  R.  Co.,  81  Tenn.  507,  514-519;  Cote  v.  Murphy,  1.59 
Pa.  St.  420,  421;   Heywood  v.  Tillson,  75  Me.  225,  233. 

It  only  remains  to  notice  the  charge  of  conspiracy  contained  in 
the  bill,  upon  w^hich  considerable  stress  has  been  laid  as  though 
the  fact  that  the  action  of  the  members  of  the  associations  was 
in  pursuance  of  a  combination  entitled  the  complainants  to  relief. 
To  maintain  a  bill  on  the  ground  of  couspirac}',  it  is  necessary  that 
it  should  appear  that  the  object  relied  on  as  the  basis  of  the  con- 
spiracy', or  the  means  used  in  accomplishing  it,  were  unla\^'ful.  What 
a  person  may  lawfully  do  a  number  of  persons  may  unite  with  him 
in  doing  without  rendering  themselves  liable  to  the  charge  of  con- 
spiracy, provided  the  means  emploj'etl  be  not  unlawful.  The  ob- 
ject of  the  members  of  the  association  was  to  free  theuLselves  from 
the  competition  of  those  not  members,  which,  as  we  have  seen,  is 
not  unlawful.  The  means  taken  to  accomplish  that  object  were  the 
agreement  among  themselves  not  to  deal  with  wholesale  dealers 
who  sold  to  those  not  memljcrs  of  the  associations,  and  the  sending 
of  notices  to  that  end  to  the  wholesalers.  This,  as  we  have  also  seen, 
was  not  unlawful.  ?Ience,  it  follows  that,  as  the  o])ject  of  the  com- 
bination between  the  members  of  the  associations  was  not  unlawful, 
nor  the  means  adopted  for  its  accomplisiiment  imlawful,  there  is 
no  ground  for  the  charge  of  conspiracy,  and  the  fact  of  combination 
is  wholly  innnaterial.  Connnonwealth  v.  Hunt,  4  Met.  Ill,  129; 
Bowen  r.  Matheson,  14  Allen,  49!);  Wellington  v.  Small,  3  Cush. 
145,  150;  Carew  i\  Rutherford,  lOG  Mass.  1,  14;  Paine  r.  \\'estern 
&  Atlantic  R.  R.  Co.,  81  Tenn.  507,  521;   Hunt  i'.  Simonds,  19  Mo. 

I  1  I.  e.,  Bowen,  L.  J.,  who  rendered  the  opinion  in  Mogul  Steamship' Co.  v. 
McGregor,  L.  R.  23  Q.  B.  D.  598.  —  Eu. 


412  BOYCOTTS  [CHAP.  VII 

583,  588;  Robertson  v.  Parks,  76  Md.  118,  134,  135;  Mogul  Steam- 
ship Co.  V.  McGregor,  L.  R.  23  Q.  B.  598;  L.  R.  (1892)  App.  Cas. 
25;  Bohn  Mfg.  Co.  v.  Hollis,  54  Minn.  223,  234;  Delz  t-.  Winfree,  80 
Tex.  400,  404. 

We  are  of  the  opinion  that  the  bill  should  be  dismissed.^ 


CASE  OF  ABBOT  OF  LILLESHALL 

Somersetshire  Gaol  Delivery.     1225 

Selden  Soc.  Pub.  Vol.  I,  p.  115,  No.  178 

The  Abbot  of  Lilleshall  complains  that  the  bailiffs  of  Shrewsbury 
do  him  many  injuries  against  his  libert}^,  and  that  they  have  caused 
proclamation  to  be  made  in  the  town  that  none  be  so  bold  as  to  sell 
any  merchandise  to  the  Abbot  or  his  men  upon  pain  of  forfeiting 
ten  shillings,  so  that  Richard  Peche,  the  bedell  of  the  said  town, 
made  this  proclamation  by  their  orders.  And  the  bailiffs  defend  all 
of  it,  and  Richard  likewise  defends  all  of  it  and  that  he  never  heard 
such  proclamation  made  by  anyone.  It  is  considered  that  he  do 
defend  himself  twelvehanded  [with  eleven  compurgators],  and  do 
come  on  Saturday  with  his  law.  Pledges  for  the  law  of  Richard 
Peche  the  bedell:  Robert  of  Bray  and  Peter  Pin.  Afterwards  came 
the  Abbot  and  by  leave  of  the  justices  remitted  the  law. 

1  Accord:  Bohn  Mfg.  Co.  v.  Hollis,  54  Minn.  223,  supra,  p.  62;  Montgomery 
Ward  V.  South  Dakota  Assn.,  150  Fed.  413.  See  also,  Ware  and  DeFreville,  Ltd. 
V.  Motor  Trade  Assn.,  [1921]  3  K.  B.  40;  Scottish  Co-operative  Society  t;.  Glasgow 
Fleshers' Assn.,  35  Scot.  L.  R.  645.  Compare:  United  States  v.  United  Shoe 
Machinery  Co.,  247  U.  S.  32;  United  Shoe  Machinery  Co.  v.  Brunet,  [1909] 
A.  C.  330. 

The  elements  of  boycott  in  such  cases  as  Macauley  v.  Tierney  and  Bohn  Mfg. 
Co.  V.  Hollis  do  not  seem  to  have  impressed  the  courts  as  illegal.  On  the  other 
hand,  similar  action  is  often  held  to  violate  state  or  federal  laws  prohibiting  re- 
straint of  trade.  See,  for  instance,  Grenada  Lumber  Co.  v.  State  of  Mississippi, 
217  U.  S.  433  (violation  of  state  statute  prohibiting  restraint  of  trade);  Mon- 
tague &  Co.  V.  Lowry,  193  U.  S.  38;  Jackson  v.  Stanfield,  137  Ind.  592  (agree- 
ment among  retail  lumber  dealers  not  to  buy  from  wholesalers  selling  to  retailers 
outside  their  association  held  illegal  as  in  restraint  of  trade.  Cites  cases);  Dueber 
Watchcase  Mfg.  Co.  v.  Howard  Co.,  55  Fed.  851  (agreement  among  watchcase 
manufacturers  not  to  sell  their  product  to  any  one  buying  watchcases  of  plaintiff 
held  not  to  violate  the  Sherman  Anti-Tru.st  Act);  but  see  24  N.  Y.  Supp.  647 
(where  same  facts  were  held  to  constitute  an  act  injurious  to  trade  or  commerce 
in  violation  of  the  N.  Y.  State  Penal  Code,  sec.  168,  subd.  6.    See  p.  649). 

Compare  also  the  following:  .Jayne  v.  Loder,  149  Fed.  21;  United  States  v. 
Coal  Dealers'  A.ssn.,  85  Fed.  253;  Brown  v.  Jacobs'  Pharmacy  Co.,  115  Ga.  429; 
Chicago,  W.  &  V.  Coal  Co.  v.  People,  214  111.  421;  Ivlingel's  Pharmacy  v.  Sharp 
&  Dohme,  104  Md.  218;  Jackson  v.  Stanfield,  137  Ind.  592;  State  v.  Adams  Lum- 
ber Co.,  81  Neb.  392;  Cleland  v.  Anderson,  66  Neb.  252;  People  v.  Sheldon, 
139  N.  Y.  251;  Territory  v.  Long  Bell  Lumber  Co.,  22  Okla.  893;  Hawarden  v. 
Youghiogheny  &  Lehigh  Coal  Co.,  Ill  Wis.  545  (common  law  restraint  of  trade); 
Funck  V.  Farmers'  Elevator  Co.,  142  Iowa,  621. 

In  other  cases  where  malice  and  lack  of  justification  are  charged  in  the  com- 
plaint and  admitted  by  demurrer,  the  demurrer  has  been  overruled.  Delz  v. 
Winfree,  80  Tex.  400;   Olive  v.  Van  Patten,  7  Tex.  Civ.  App.  630. 


SECT.  II]  SECONDARY   BOYCOTT  413 

WILSON  V.  HEY 
Supreme  Court  or  Illinois.     1908 

232  ///.  389 

Mr.  Justice  Caktwrkjht  ddivcnMl  the  opinion  of  the  court: 
Tlic  appellees,  John  K.  Wilson  and  JcjJin  T.  \\'ils(jn,  are  partners, 
and  have  been  engaM;<'d  in  businos.s  many  years  in  Sparta,  a  city  of 
Randolph  county,  iiavin^  a  population  of  3000  at  the  last  census. 
Their  business  has  been  that  (if  liverymen,  haekmen  and  draymen, 
and  they  have  owned  and  used  a  lar^e  numljer  of  teams,  wagons 
and  vehicles  furnished  to  the  public  for  hire.  Their  business  in- 
cluded hauling  freight  for  merchants  and  others,  and  carrying  pas- 
sengers, boarding  horses  for  customers,  furnishing  storage  for  a 
hearse  and  a  team  for  hauling  the  hearse.  They  also  owneti  a  build- 
ing known  as  the  "Auditorium,"  which  they  rented  for  lectures  and 
exhibitions.  There  have  also  been  in  Sparta  organizations  or  unions 
of  laborers,  among  which  are  the  Team  Drivers'  International  Union 
No.  109,  the  BrotlKM'hood  of  Carpenters  and  Joiners  of  America  No. 
479,  the  Brotherhood  of  Painters,  Decorators  and  Paper  Hangers 
of  America  No.  74,  and  the  United  Mine  Workers  of  America  No. 
659.  These  are  subordinate  unions  to  the  Sparta  local  union  of  the 
American  Federation  of  Labor,  which  is  a  general  organization 
coml)ining  all  tratles  and  callings,  and  there  is  another  organiza- 
tion known  as  the  Sj)arta  Central  Trades  and  Labor  As.sembly, 
composed  of  delegates  from  each  of  the  subordinate  unions.  At 
various  times  since  1900  there  have  been  difficulties  between  the 
appellees  and  the  labor  unions,  and  the  team  drivers'  union  has 
demanded  of  the  appellees  the  employment  of  none  but  union  team 
drivers  on  their  teams  or  on  anj'  hack  or  omnibus.  (Jne  of  these 
difficulties  was  in  1903,  about  hauling  brick  to  the  school  house. 
It  was  a  short  haul,  and  the  appellees  used  two  teams  for  three 
wagons,  so  as  to  leave  one  wagon  staiuling  for  loading  or  unloading. 
A  committee  of  the  union  called  upon  one  of  the  appellees  and  in- 
formed him  that  he  was  preventing  men  from  working  and  ordered 
him  to  put  a  team  and  driver  on  each  wagon.  He  pleaded  economy 
and  that  th(M-e  was  no  necessity  for  a  team  on  each  wagon,  but  after 
a  hearing  th(>  Trades  and  Labor  Assembly  ordered  a  team  for  each 
wagon,  which  was  put  on  until  appellees  could  hear  from  an  appeal 
taken  to  the  International  Brotherhootl  of  Teamsters.  They  re- 
ceived a  communication  from  Cornelius  P.  Shea,  the  president,  de- 
clining to  interfere,  and  they  complied  with  the  order.  In  1901 
the  team  drivers'  union  pul)lished  a  notice  in  a  newspaper  recjuest- 
ing  all  union  men  not  to  patronize  appellec^s  until  they  should  comply 
with  some  agreement  with  them,  i)Ut  all  the  difficulties  were  settled 
by  appellees  yielding  to  the  demands  made.  In  the  spring  of  1904 
there  was  trouble  over  the  Imilding  of  a  church   in  Sparta,  when 


414  BOYCOTTS  [CHAP.  VII 

appellees  were  notified  to  take  their  teams  off.  On  April  14,  1904, 
the  appellees  and  officers  of  the  team  drivers'  union  signed  a  con- 
tract, in  which  the  appellees  agreed  "to  work  onl}^  union  team  drivers 
on  all  teams;  also  to  employ  Federation  members  at  all  other  work 
as  helpers."  The  contract  contained  this  further  agreement  on 
the  part  of  appellees:  "'In  case  no  union  man  can  be  had  from  either 
union  we  can  employ  another  only  for  a  short  time,  and  if  he  or  they 
work  for  more  than  one  day  we  agree  to  retain  one  dollar  on  his 
or  their  application  to  join  the  A.  F.  of  L.  No.  7231,  or  the  Team 
Drivers'  Union  No.  109."  In  November,  1904,  there  was  a  new 
difficulty  between  the  parties  growing  out  of  that  contract.  The 
dispute  was  over  the  claim  that  appellees  had  not  retained  the  proper 
amount  of  money  from  non-union  employees.  Appellees  claimed 
that  there  was  only  one  dollar  due  on  a  man  named  Dude  Wilson, 
and  that  was  paid,  but  the  union  claimed  that  appellees  owed  five 
dollars  on  account  of  non-union  men.  Appellees  refused  to  pay  the 
four  dollars,  and'  the  team  drivers'  union  put  them  on  what  was 
called  the  "unfair  list"  and  reported  such  action  to  the  local  union 
of  the  Federation  of  Labor  and  the  Trades  and  Labor  Assembl}^ 
The  Trades  and  Labor  Assembly  endeavored  to  have  appellees 
yield,  and  upon  their  refusal  the  assembly  appointed  a  committee 
of  three  to  inform  the  business  men  general^,  in  Sparta,  a  part  of 
whom  had  been  in  the  habit  of  having  appellees  haul  their  freight 
and  who  were  accustomed  to  deal  with  them,  that  appellees  were 
on  the  "unfair  hst."  The  members  of  the  various  unions  ceased  to 
patronize  appellees,  and  some  of  those  to  whom  notices  were  given 
did  the  same.  There  were  some  who  paid  no  attention  to  the  notice 
but  continued  to  employ  and  deal  with  appellees  as  before.  A  bill 
of  paint  sold  by  one  man,  which  was  delivered  by  appellees,  was 
sent  back  for  that  reason  and  he  was  compelled  to  take  it  back.  There 
was  no  threat  made  by  the  committee  in  connection  with  the  notice, 
but  it  was  understood  by  various  parties  who  received  it  that  their 
business  would  be  injured  and  trade  withdrawn  unless  thc}^  complied 
with  it.  A  scries  of  lectures  wei-e  to  be  given  under  the  auspices 
of  the  school  board  and  the  Auditorium  was  engaged  for  that  pur- 
pose. An  officer  of  the  school  board  was  notified  not  to  hire  the 
Auditorium,  by  a  committee,  who  stated  that  they  were  acting  as 
a  committee  of  one  of  the  unions.  The  Trades  and  Labor  Assembly 
on  January  26,  1905,  notified  the  Lyceum  Bureau  that  the  Audi- 
torium, in  which  the  lectures  were  to  be  given,  was  on  the  "we  don't 
patronize"  list,  and  the  board  was  requested  to  arrange  to  have 
the  lectures  delivered  elsewhere.  The  union  afterward  granted  the 
request  of  the  school  board  and  removed  the  ban.  A  committee 
called  on  the  undertaker  who  owned  the  hearse  and  notified  him 
not  to  use  appellees'  team  to  haul  his  hearse  at  a  funeral,  and  the 
notice  was  complied  with.  A  similar  notice  was  given  in  another 
case. 


SECT.  II]  SECONDARY   BOYCOTT  415 

Appellees  filed  their  bill  in  this  ease  in  the  C'ircuit  Court  of  Ran- 
doli)h  eoiinty  setting  up  these  facts,  and  making  the  ap|K'llant«, 
who  are  the  unions  and  their  officers,  defendants,  and  praying  for 
an  injunction  against  interfering  with  the  appellees,  their  servants 
or  employees,  from  boycotting  the  appellees,  their  teams  or  vehicles 
or  l)usiness,  and  from  giving  notices  witli  the  intent  or  calculated 
to  deter  the  public  from  doing  business  witii  them.  Later  a  supple- 
mental bill  was  filed  alleging  acts  of  interference  with  the  business 
of  appellants  after  the  filing  of  the  original  bill.  Answers  were  filed 
denying  the  material  allegations  of  the  bill  and  supplemental  bill, 
and  there  was  a  hearing  in  open  court,  at  which  a  large  niunber  of 
witnesses  were  examined  and  documentar}'  evidence  was  intro- 
duced. A  decree  was  entered  finding  the  allegations  of  the  bill  and 
supplemental  bill  to  be  true,  granting  an  injunction  .substantially 
as  prayed  for  in  the  bill  against  putting  appellees  or  their  employees 
on  the  "unfair  list"  and  from  boycotting  appellees,  or  going  to 
or  sending  connuittees  to  their  customers  to  induce  or  compel  them 
to  withliold  their  trade  from  appellees,  and  from  menacing  or  in- 
terfering with  their  business  in  furtherance  of  the  conspiracy  against 
them. 

The  facts  are  not  in  dispute,  antl  the  argument  for  appellants  is 
based  on  the  proposition  that  nothing  wrong  or  unlawful  was  done. 
The  jurisdiction  of  ecpiity  is  not  questioned  if  there  was  a  wrongful 
interference  with  the  rights  of  appellees,  but  counsel  say  that  it  was 
neither  unlawful  to  refuse  to  deal  with  appellees  nor  to  notify  others 
of  such  refusal,  and  to  try  to  induce  them,  by  peaceable  means,  not 
to  patronize  appellees. 

The  rights  of  labor  unions  and  the  extent  to  which  they  may  law- 
fulh^  go  have  been  pretty  fully  explained  in  O'Brien  /•.  People,  216 
111.  354,  and  Franklin  Union  v.  People,  220  Id.  355.  The  right  of 
laboring  people  to  organize  for  the  purpose  of  promoting  their  com- 
mon welfare  by  lawful  means  is  fully  recognized.  They  may  refuse 
to  work  for  any  particular  emi)Ioyer,  and  may  obtain  employment 
for  their  members  by  solicitation  and  promises  of  support  in  trade 
and  otherwise,  but  in  the  accomplishment  of  their  purpose  they 
must  proceed  only  by  lawful  and  peaceable  means  and  they  have  no 
right  to  make  war  on  other  persons.  It  is  not  wrong  for  membei-s 
of  a  union  to  cease  patronizing  any  one  when  they  regard  it  for  their 
interest  to  do  so,  but  they  have  no  right  to  compel  others  to  break 
off  busine.ss  relations  with  the  one  from  whom  they  have  withdrawn 
their  patronage,  and  to  do  this  by  unlawful  means,  with  the  motive 
of  injuring  such  person.  Such  means  as  giving  notices  which  excit<5 
the  fear  or  rea.sonable  apprehension  of  other  pensons  that  their  busi- 
ness will  be  injured  unless  they  do  break  off  such  relations  or  cease 
patronizing  another  are  wrong  and  unlawful.  If  the  notices  given 
or  things  done  have  the  natural  effect  of  exciting  such  reasonable 
fear  and  apprehen.sion  and  accomplish  the  result  inteiuled,  it  is  im- 


416  BOYCOTTS  [CHAP.  VII 

material  that  the\'  are  not  accompanied  by  direct  threats.  In  this 
case  a  witness  who  said  he  did  not  pay  any  attention  to  the  notice 
and  did  not  cease  to  deal  with  appellees  testified  that  the  effect  on 
his  business  was  bad,  and  others  testified  that  they  notified  appellees 
that  they  did  not  want  them  to  haul  their  freight  because  of  fear 
of  being  boycotted  if  they  permitted  them  to  continue  doing  the 
hauling.  There  was  no  threat  made  in  connection  with  the  notice, 
but  it  was  understood  by  the  parties  that  the  result  would  be  an 
injury  to  anyone  who  dealt  with  the  appellees.  It  was  understood 
by  those  who  received  the  notices  that  if  they  continued  to  trade 
with  appellees  and  did  not  break  off  existing  business  relations  they 
would  incur  the  hostility  of  the  unions  and  their  own  business  would 
suffer.  The  evidence  shows  that  in  this  case,  at  least,  the  words 
"unfair  list"  were  a  euphemism  for  a  boycott,  and,  of  course,  it 
does  not  change  the  nature  of  an  unlawful  thing  by  substituting  an 
inoffensive  for  an  offensive  name.  The  testimony  was  that  the  ob- 
ject of  putting  one  on  the  "unfair  list"  was,  if  the  parties  receiving 
a  notice  should  keep  on  dealing  with  such  person  the  unions  would 
withdraw  their  patronage,  and  the  only  object  of  the  whole  proceed- 
ing was  to  coerce  appellees  by  injuring  their  business  with  the  public 
at  large.  .  .  .  Here  was  a  small  place  in  which  there  were  a  number 
of  unions,  embracing  a  considerable  part  of  the  population,  and  the 
ruinous  effect  of  a  boycott  and  a  withdrawal  of  their  patronage  from 
customers  of  appellees  unless  such  customers  should  break  off  all 
business  relations  with  appellees  can  readily  be  seen  and  understood. 

It  is  urged  that  the  injunction  as  allowed  is  too  broad,  for  the 
reason  that  appellants  are  enjoined  from  putting  appellees  on  the 
"unfair  list."  If  the  only  purpose  of  putting  one  on  the  "unfair 
list,"  and  the  only  effect,  were  to  notify  members  of  the  union  of 
the  fact  so  that  they  might  withdraw  their  patronage,  the  injunc- 
tion would  be  too  broad;  but  the  evidence  in  the  record  is  that  the 
purpose  of  that  list  is  not  so  limited  and  that  its  purpose  and  effect 
is  to  establish  a  boycott,  and  in  that  view  it  is  not  too  broad. 

The  judgment  of  the  Appellate  Court  is  affirmed. 

Judgment  affirmed. 

Scott  and  Farmer,  JJ.,  dissenting: 

We  do  not  think  the  evidence  in  this  case  warrants  the  conclusion 
that  appellants  established  or  sought  to  establish  a  boycott.  The 
committee  appointed  by  the  Trades  and  Labor  Assembly  called  on 
many  persons  in  Sparta  who  had  been  in  the  habit  of  dealing  with 
appellees  and  informed  them  of  the  action  that  had  been  taken  by 
the  unions.  Following  this,  members  of  the  various  unions  in  the 
city  ceased  to  patronize  appellees,  and  some  of  those  to  whom  notice 
was  given,  as  above  mentioned,  did  likcnvise,  while  others  to  whom 
notice  of  the  action  of  the  unions  came,  paid  no  attention  to  the 
matter  but  continued  to  deal  with  appellees  as  before.  No  violence 
or  threats  of  violence  were  used  by  appellants,  or  either  of  them,  to 


SECT.  II]  SECONDARY   BOYCOTT  417 

induce  appellees  to  adju.st  the  contivjversy  in  n  manner  satisfactory 
to  the  unions  or  to  cause  individuals  to  wIkjiu  the  n(jtices  were  given 
to  refrain  from  dealing  with  appellees,  and  appellants  did  not  cease, 
or  threaten  to  cease,  to  patronize  those  business  men  who  paid  no 
attention  to  and  who  were  not  influenced  by  the  notice  that  apiK'llees 
wer(,>  upon  tlu;  "unfair  list."  It  is  true  that  one  business  man  who 
continued  to  deal  with  appellees  after  receiving  the  notice,  testified 
that  his  business  was  not  as  good  as  it  had  Ijeen  before  he  received 
the  notice.  The  record  is  barren  of  evidence  as  to  whether  or  not 
the  lessening  of  his  profits  resulted  froui  the  continuance  oi  his  busi- 
ness relations  with  appellees. 

The  law  is  that  an  individual  may  refrain  from  trading  or  deal- 
ing with  any  particular  person,  and  that  two  or  more  individuals 
may  agree  among  themselves  that  they  will  not  trade  (jr  deal  with  a 
certain  |)ers()n,  and  may  give  notice  to  others  that  they  have  made 
such  an  agreement.  (Conunonwealth  v.  Hunt,  4  Mete.  Ill;  Bowen 
V.  Matheson,  14  Allen,  499;  .Macauley  v.  Tierncy,  19  R.  I.  225; 
Bohn  Manf.  Co.  v.  Mollis,  54  Minn.  223;  Cote  v.  ^lurphy,  159  Pa. 
420;  Longshore  Printing  Co.  r.  Howell,  2G  Ore.  527;  National  Pro- 
tective Assn.  V.  Cumming,  170  N.  Y.  315;  18  Am.  cV:  Eng.  Ency.  of 
Law,  2d  ed.,  p.  87.)    Appellants  tlid  nothing  more.^   .   .    . 


GRAY  V.  BUn.DING  TRADES  COUNCIL 
Supreme  Court  of  Minnesota.     1903 

91  Mirni.  171 

Brown,  J.  Action  to  restrain  and  enjoin  defendants  from  boy- 
cotting plaintiffs  in  their  lousiness.  Six  separate  actions  of  the  same 
nature  were  brouglit  at  the  same  time  by  ditTerent  plaiutifTs  against 
the  same  defendants,  in  each  of  which  the  trial  court  made  an  order 
that   a  temporary  injunction  issue,   restraining  and  enjoining  de- 

1  See  also  Beck  v.  Railway  Teamsters'  Union,  118  Mich.  497  (boycott  ac- 
companied by  intimidation  and  violence).  A  large  number  of  boycott  cases  will 
be  found  collected  in  0  Am.  Law  Rep.  909  ct  seq. 

Speaking  of  the  ca.ses  of  Bohn  Manufacturing  Co.  v.  Hollis,  54  Minn.  223, 
supra,  p.  62,  and  Continental  Insurance  Co.  r.  Fire  Underwriters,  07  Fed.  310, 
Prof.  Charles  Noble  Gregory,  in  11  Harv.  L.  Rev.  487,  at  p.  .505,  writes:  "  It  is 
the  contention  of  tho.se  near  to  the  labor  organizations  that  these  ca.ses  establi.sh 
the  legality  of  combinations  of  capitalists,  even  of  moderate  or  small  capitalists 
and  business  men,  as  retail  lumber  dealers  and  insurance  agents,  for  the  purpose, 
by  non-intercour.se  and  by  at  least  partial  boycott,  of  di.sciplining  those  who  do 
not  join  their  combination  or  do  not  transact  business  as  they  wish  it  to  l)e  done, 
but  that  the  courts  hold  an  exactly  opposite  rule  when  they  pa.ss  upon  the  peace- 
ful combinations  of  humbler  laboring  men  to  maintain  wage  rates,  and  to  declare 
for  non-intercourse  with  tho.se  who  will  not  join  them  or  who  oppo.se  them.  It 
is  difficult  to  see  why  the  rules  should  not  be  identical,  and,  if  the  courts  have 
appeared  to  discriminate  against  tho.sc  wiio  most  need  to  t>e  taught  the  impar- 
tiality of  our  administration  of  justice,  it  is  hoped  that  later  decisions  may  so 
plainly  establish  that '  he  who  runs  may  reail,'  that  there  is  one  rule  for  all  alike." 


418  BOYCOTTS  [CHAP.  VII 

fendants  in  the  respects  hereinafter  mentioned,  from  which  order 
defendants  appealed  to  this  Court.  The  cases  were  submitted  here 
together  and  upon  one  set  of  briefs. 

The  facts  are  as  follows:  Plaintiffs  are  electrical  contractors  and 
engineers,  and  their  business  consists  in  installing  wires  and  other 
electrical  apparatus  in  buildings  and  structures,  and  such  business 
and  affairs  as  are  incidental  thereto.  It  is  alleged  in  the  complaint 
in  this  connection  (substantially  the  same  allegations  being  found 
in  the  complaint  in  each  of  four  of  the  actions)  that  plaintiffs  have 
built  up  a  large  and  profitable  business  in  their  line;  that  the  cus- 
tomers with  whom  they  are  doing  it  are  necessary  and  essential  to 
the  successful  conduct  of  the  same;  that  such  business  is  a  source 
of  profit,  and  from  which  they  earn  a  livelihood;  that  defendant 
Building  Trades  Council  is  an  unincorporated  association  consist- 
ing of  a  large  number  of  delegates  from  numerous  other  associations, 
known  as  "labor  unions,"  all  of  which  are  located  in  the  city  of 
Minneapolis;  that  each  labor  union  or  organization  selects  a  certain 
number  of  delegates,  who  represent  and  act  for  it,  who  become  mem- 
bers of  and  constitute  the  Building  Trades  Council,  which,  so  com- 
posed, possesses  and  exercises  control  over  all  the  unions  so  repre- 
sented; that,  by  virtue  of  an  arrangement  between  the  unions,  any 
action  taken  or  order  given  by  the  Trades  Council  is  binding  and 
obligatory  upon  each  of  the  several  unions  so  represented,  and  form- 
ing part  of  the  council;  that  each  individual  member  assumes  an 
obligation  to  abide  by  and  obey  all  orders  emanating  from  the  Trades 
Council,  in  default  of  which  he  subjects  himself  to  a  fine  of  $5;  that 
one  of  the  unions  so  associated  with  the  Trades  Council  is  the  In- 
ternational Brotherhood  of  Electrical  Engineers  of  America,  Local 
Union  No.  292;  that  this  brotherhood  is  composed  of  employees  of 
firms  engaged  in  a  business  similar  to  that  of  plaintiffs;  that,  in  the 
language  of  the  union,  certain  firms  and  corporations  are  known  as 
"fair,"  and  others  as  "unfair";  that  those  classified  as  "unfair" 
are  such  as  employ  non-union  labor,  and  those  classified  as  "fair" 
limit  their  employees  to  union  laborers;  that  defendant  Building 
Trades  Council  has  recently  placed  all  of  the  plaintiffs  upon  the 
"unfair"  list;  that  defendants  have  entered  into  a  conspiracy  and 
combination  for  the  i)urposc  of  injuring  the  business  of  plaintiffs, 
and  in  pursuance  of  which  defendants  have  appeared  before  prospec- 
tive customers,  and  threatened  such  customers  that,  if  they  at- 
tempted to  do  business  with  plaintiffs,  defendants  would  make  it 
impossible  to  transact  business  with  them;  that  on  May  15,  1903, 
defendants,  in  pursuance  of  such  conspiracy  and  combination,  ap- 
pearcjd  before  a  committee  in  charge  of  the  affairs  of  the  Minne- 
apolis Industrial  &  Amusement  Association,  and  declared  that  if 
it  sliould  give  contracts  for  certain  electrical  wiring,  which  the  asso- 
ciation desinid  to  have  done,  to  plaintiffs,  or  eitlier  of  them,  the 
Trades  Council  would  see  that  the  association  would  be  unable 


SECT.  II]  SECONDARY   BOYCOTT  419 

to  obtain  men  for  the  construction  of  the  booths  and  other  buildings 
contoniplated  and  necessary  for  the  carnival  and  fair  to  Ix-  given 
by  the  association.  The  complaint  further  alleges  that  at  the  time 
said  threats  were  made  by  the  Trades  (,'ouncil  the  association  was 
inteiuling  to  make  contracts  for  tiie  electrical  work  with  plaintiffs; 
that,  but  for  the  intimidation  and  tin-eats  of  the  Trades  (Vjuncil,  the 
contract  for  such  work  w(nild  have  been  let  to  them,  in  the  jjcr- 
formance  of  which  plaintiffs  would  have  made  a  profit. 

The  same  facts  are  alleged  in  the  complaints  in  the  other  two  ac- 
tions, except  as  to  the  carnival  association;  and  on  this  subject, 
namely,  the  particular  interference  with  plaintiffs'  business  com- 
plained of,  it  is  alleged  in  the  CJugler  Manufacturing  Co.  case  that 
plaintitT  in  that  action  was  engaged  in  carrying  out  a  contract  with 
one  Smith,  the  proprietor  of  the  Jirunswick  Hotel,  in  Miiuieapolis; 
that  the  contract  required  plaintiff  to  install  wires  and  otiier  electrical 
apparatus  in  the  building;  that  other  artisans,  consisting  of  car- 
penters, plasterers,  and  painters,  were  engaged  in  and  about  the  same 
building;  that  a  represcMitative  of  the  Trades  Council  called  upon 
Smith,  and  notified  him  that,  if  i)laintiff  was  permitted  to  continue 
work  on  the  jjuilding,  the  council  would  order  all  union  men  under 
its  control,  and  employed  in  and  about  the  building,  to  quit  work, 
and  that  the  council  would  see  to  it  that  Smith  would  be  unaV)le  to 
complete  the  contract.  Smith  then  notified  plaintiff  of  these  threats 
and  representations,  and  urged  upon  it  the  necessity  of  cancelling 
its  contract  for  the  electrical  work  upon  such  building,  \yhich  plain- 
tiff thereafter,  in  view  of  the  situation,  consented  to  do.  In  the 
Hartig  i^'  Hellier  case  a  stat(>  of  affairs  is  presented  very  similar  to 
the  Clugler  case.  The  complaints  further  allege  that  plaintiffs  have 
no  adequate  remedy  at  law,  and  that  defendants  are  insolvent  and 
unal)le  to  respond  in  damages,  and  conclude  with  a  prayer  that  de- 
fentlants  be  restrained  and  enjoined  from  carrj'ing  out  the  threats 
complained  of. 

The  answer  in  each  case  admits  all  the  allegations  of  the  com- 
plaints respecting  the  organization  of  defendant  Trades  Council, 
its  objects  and  purpo.ses,  its  connection  with  the  International 
Brotherhood  of  Electrical  Workers  of  America,  and  in  all  other  ma- 
terial respects  denies  generally  the  allegations  of  the  complaints. 
It  specifically  denies  that  defendants,  or  any  of  them,  have  entered 
into  any  conspiracy  or  combination  for  the  purpose  of  injuring  or 
destroying  the  business  of  ])laintiffs,  or  that  pursuant  to  a  con- 
spiracy ov  coml)ination  defendants,  or  any  of  them,  have  appeared 
before  prospective  customers  of  plaintiffs,  or  any  other  person  or 
persons,  or  made  any  of  tlie  threats  set  forth  in  the  complaint  or 
otiierwise. 

The  actions  canii^  on  before  the  court  below  on  plaintifTs'  ai)plica- 
tion  for  a  temporary  injunction  enjoining  and  restraining  dcfcMidants, 
and  each  of  them,  from  the  threatened  acts,  and  were  heard  upon 


420  BOYCOTTS  [CHAP,  VII 

the  pleadings  and  affidavits  in  support  and  in  denial  of  the  allega- 
tions of  the  complaints.  After  due  consideration,  the  court  made 
an  order  that  a  temporary  injunction  issue  in  each  action  restrain- 
ing and  enjoining  defendants,  and  each  of  them,  from  doing  the  cer- 
tain acts  hereinafter  referred  to. 

It  appears  from  the  affidavits,  in  addition  to  the  matter  pleaded, 
that  plaintiffs,  with  a  number  of  other  electrical  contractors,  formed 
an  association  among  themselves,  and  entered  into  an  agreement 
with  each  other,  agreeing  among  other  things  upon  uniform  con- 
ditions of  service,  a  scale  of  wages,  and  that  there  should  be  no  dis- 
crimination in  respect  to  the  persons  emploj^ed  because  they  might 
or  might  not  be  members  of  some  labor  union  or  organization;  in 
short,  they  proposed  to  employ  non-union  labor  if,  in  their  judg- 
ment, their  interests  suggested  it. 

No  controversy  ever  arose,  so  far  as  appears  in  the  record,  between 
plaintiffs  and  any  of  their  employees,  or  defendants,  as  represen- 
tatives of  labor  unions,  as  to  the  amount  of  wages  paid  or  to  be  paid 
their  employees.  The  whole  controversy  rests  on  the  effort  of  de- 
fendants to  compel  plaintiffs  to  employ  union  labor  only.  It  is 
urged  that  the  efforts  made  in  this  direction  were  legitimate,  and 
were  resorted  to  for  the  purpose  of  furthering  the  interests  of  those 
represented  by  the  Trades  Council  and  the  electrical  union,  and 
without  malicious  intent  to  injure  the  business  of  plaintiffs;  that, 
if  injury  in  fact  resulted  to  plaintiffs,  it  was  incidental  to  the  exer- 
cise of  a  lawful  right  by  defendants.  The  complaints  allege  facts 
showing  a  boycott,  and  the  order  of  the  trial  court  granting  a  tem- 
porary injunction  must  be  deemed,  for  the  purposes  of  this  review, 
as  a  finding  that  the  facts  so  alleged  are  true.  .  .  . 

A  strike  for  the  purpose  of  securing  better  wages  or  otherwise  bet- 
tering the  condition  of  the  strikers  is  not  unlawful,  though  the  result 
thereof  is  a  combination  between  the  striking  employees,  and  results 
incidentally  in  the  injury  of  others.  Bohn  Mfg.  Co.  v.  Hollis,  54 
Minn.  223,  55  N.  W.  1119.  The  courts  very  generally  refuse  to 
interfere  by  injunction  to  prevent  such  action.  But  a  boycott,  as 
generally  understood,  is  held  by  nearly  all  the  authorities  to  be  an 
unlawful  conspiracy,  and  subject  to  restraint  by  a  court  of  equity. 
A  boycott  may  be  defined  to  l)e  a  combination  of  several  persons 
to  cause  a  loss  to  a  third  person  by  causing  others  against  their  will 
to  withdraw  from  him  their  beneficial  business  intercourse  through 
threats  that,  unless  a  compliance  with  their  demands  be  made,  the 
persons  forming  the  combination  will  cause  loss  or  injury  to  him; 
or  an  organization  formed  to  exclude  a  person  from  business  rela- 
tions with  others  by  persuasion,  intimidation,  and  other  acts,  which 
tend  to  violence,  and  thereby  cause  him  through  fear  of  resulting 
injury  to  submit  to  dictation  in  the  management  of  his  affairs.  Such 
acts  constitute  a  conspiracy,  and  may  be  restrained  by  injunction. 
5  Cyc.  L.  995;   Crump  v.  Commonwealth,  84  Va.  927,  G  S.  E.  620; 


SECT.  II]  SECONDARY   BOYCOTT  421 

Toledo,  A.  A.  &  N.  M.  Ily.  Co.  v.  Pennsylvania  Co.  (C.  C.)  54  Fed. 
730;  Barr  v.  Essex,  53  N.  J.  Eq.  101,  30  Atl.  H81;  State  v.  Stewart, 
59  Vt.  273,  9  Atl.  559;  Gatzow  v.  Buenins,  lOG  Wis.  1,  81  N.  W.  1003; 
Casey  v.  Cincinnati  Typographical  Union  (C.  C),  45  Fed.  135;  Frank 
V.  Herold,  03  N.  J.  l":q.  443,  52  Atl.  152. 

In  Hopkins  v.  Oxlcy  Stave  Co.,  S3  1'\h\.  912,  2S  C.  C.  A.  90,  104, 
Judge  Thayer,  speaking  for  the  Court  of  Appeals  of  the  Eighth 
Circuit,  said:  "While  the  courts  have  invariably  upheld  the  right 
of  individuals  to  form  lal)or  organizations  for  the  protection  of  the 
interests  oi  the  laboring  classes,  an<l  have  denied  the  power  to  en- 
join the  members  of  such  associations  from  withdrawing  .  .  .  either 
singlj''  or  in  a  body,  even  where  such  withdrawal  involves  a  breach 
of  contract,  .  .  .  yet  they  have  very  generally  condemned  those 
coml)inations  usually  termed  '  boycotts,'  which  are  formed  for  the 
purpose  of  interfering,  otherwise  than  l)y  lawful  competition,  with 
the  business  affairs  of  others,  and  depriving  them,  by  means  of 
threats  and  intimidation,  of  the  right  to  conduct  the  business  in 
which  they  hapi)en  to  be  engaged,  according  to  the  dictates  of  their 
own  judgments.''  .   .   . 

The  case  of  Bohn  Mfg.  Co.  v.  Mollis,  supra,  is  not  here  in  point. 
In  that  case  certain  retail  dealers  in  lumber  agreed  with  each  other 
not  to  deal  with  wholesale  dealers  who  sold  building  material  direct 
to  consumers  or  contractors.  It  appeared  that  tlu;  plaintifY  therein 
had  sold  certain  material  to  contractors,  and  the  defendants  threat- 
ened to  inform  all  members  of  the  retail  association  of  the  fact,  and 
plaintiff  brought  that  action  to  restrain  them  from  so  doing,  on  the 
ground  that  it  was  a  conspiracy  to  injure  its  business.  The  court 
hekl  otherwise,  but  the  decision  is  clearly  put  on  the  ground  that  the 
action  of  the  retail  dealers  was,  in  effect,  a  strike,  and  not  rest  rain- 
able  in  equity.  They  intended  only  to  inform  members  of  their 
association  of  the  action  of  plaintiff  in  selling  direct  to  the  contrac- 
tors, and  there  was  no  claim  made  of  any  boycott,  as  in  the  case  at 
bar.  .  .  . 

Intimidation  and  coercion  are  essential  elements  of  a  boycott. 
It  must  appear  that  the  means  used  are  threatening  and  intended  to 
overcome  the  will  of  others  and  compel  them  to  do  or  refrain  from 
doing  that  which  they  would  or  would  not  otherwise  have  done. 

What  amounts  to  coercion,  inthnidation,  or  threats  of  injury, 
must  necessarily  depend  upon  the  facts  of  each  particular  case. 
Plant  v.  Woods,  176  Mass.  492,  57  N.  E.  1011;  Sherry  r.  Perkins. 
147  Mass.  212,  17  N.  E.  307.  In  Barr  v.  Esse.x,  53  X.  J.  Eq.  101, 
122,  30  AtL  881,  it  was  said  that:  "The  clear  weight  of  authority 
undoubtedly  is  that  a  man  may  be  intimidatetl  into  doing  or  refrain- 
ing from  doing  [a  particular  act]  by  fear  of  loss  of  life  or  injury  to 
health  or  limb;  and  the  ext(>nt  of  this  fear  need  not  be  abject,  but 
only  such  as  to  overcome  his  judgment,  or  induce  him  not  to  do,  or 
to  do,  that  which  otiierwise  he  would  have  done  or  have  left  undone." 


422  BOYCOTTS  [CHAP.  VII 

Intimidation,  within  the  meaning  of  the  law,  is  not  necessarily  limited 
to  threats  of  violence  to  person  or  property.  .  .  . 

It  foUows  from  what  has  been  said  that  the  learned  trial  court  was 
justified  in  holding  that  defendants  were  guilty  of  a  boycott,  and 
ordering  the  issuance  of  a  temporary  injunction  restraining  them 
therefrom. 

We  come,  then,  to  the  question  whether  the  contention  of  defend- 
ants, to  the  effect  that  the  order  of  the  trial  court  is  too  broad  and 
restrains  acts  other  than  of  boj^otting,  is  well  taken.  The  order  of 
the  court  is  as  follows : 

"Said  injunction  shall  specifically  enjoin  said  defendants  and 
each  of  them,  their  members,  agents,  and  employees,  from  in  any 
manner  interfering  with  the  business  of  the  plaintiffs  by  means  of 
threats  or  intimidation,  of  any  kind  or  nature,  directed  against  the 
customers  or  prospective  customers  of  said  plaintiffs. 

"Said  injunction  shall  specifically  enjoin  the  said  defendants, 
council  and  brotherhood,  their  members,  agents,  and  emploj^ees, 
and  each  and  every  of  them,  from  interfering  with  the  customers  or 
prospective  customers  of  plaintiffs  by  threats  of  any  kind  or  nature, 
and  particular!}^  from  notifying  such  customers  or  prospective  cus- 
tomers and  patrons  of  plaintiffs  that  plaintiffs  are  unfair. 

"Said  injunction  shall  specifically  enjoin  said  defendants,  coun- 
cil and  brotherhood,  their  members,  agents,  representatives,  and 
employees,  and  each  and  every  of  them,  from  going  upon  the  premises 
where  plaintiffs  are  engaged  or  employed,  for  the  purpose  of  inter- 
fering with  the  business  of  plaintiffs,  and  pursuant  to  said  purpose, 
from  ordering  and  directing  or  notifying  men  belonging  to  the  va- 
rious allied  unions  to  desist  from  work  upon  said  premises  bj''  reason 
of  the  fact  that  plaintiffs  are  employed  thereon." 

As  already  stated,  it  was  proper  for  the  trial  court  to  enjoin  de- 
fendants from  all  acts  amounting  to  a  boycott,  and  the  question 
presented  is  whether  the  order  of  the  trial  court  goes  beyond  this  in 
scope  and  effect.  The  first  subdivision  of  the  order  restrains  and 
enjoins  defendants,  their  members  and  agents,  from  in  any  manner 
interfering  with  the  business  of  plaintiffs  by  means  of  threats  or  in- 
timidation, of  any  kind,  directed  against  their  customers  or  pro- 
spective customers.  The  second  subdivision  enjoins  them  from 
interfering  with  the  customers,  or  prospective  customers,  of  plain- 
tiffs, by  threats  of  any  kind  or  nature,  and  paiiicularly  from  notify- 
ing such  cuMoyners  or  prospective  customers  that  plnintiffs  are  unfair. 
We  are  of  opinion  that  neither  of  these  restraining  clauses,  except 
the  part  we  have  italicized,  goes  beyond  or  restrains  defendants 
from  acts  other  than  boycotting,  and  were  therefore  proper.  It  is 
immaterial  whether  contract  relations  actually  existed  between 
plaintiffs  and  their  customcM-s  at  th(>  time,  for  it  would  be  just  as 
injurious  and  destructive  to  plaintiffs'  business  to  jM'evc^it  them  by 
such  means  from  obtaining  customers  witli  whom  they  could  enter 


SECT.  II]  SECONDARY   BOYCOTT  423 

into  contracts  as  to  interfere  hy  unlawful  threats  or  intimidation 
and  cause  existing  contract  relations  to  l>e  Itroken.  It  is  plaintitTs' 
business  as  a  whole  that  the  law  protects,  and  not  some  particular 
transaction  involved  therein.  If  a  notification  to  such  custoin«'rs, 
actual  or  prospective,  that  plaintitTs  are  "unfair,"  portends  injury 
to  them  or  [)laiiititTs,  and  such  as  to  hrin^  the  case  within  the  rule 
against  boycottinj;,  it  was  properly  made  a  jjart  of  the  temi>orary 
injunction.    Beck  v.  Railway,  118  Mich.  497,  77  X.  W.  Hi. 

Whether  such  a  notification  would  in  any  ca.se  amount  to  a  threat 
or  intimidation  must  he  determined  from  all  the  facts  and  circ\mi- 
stances  of  each  particular  case.  Such  notice  mijjht  have  sp<"(ial 
significance  in  a  particular  case,  and  have  no  meaning  in  another. 
But  the  complaints  before  us,  by  which  we  are  controlled  in  deter- 
mining the  case,  there  being  no  finding  otlier  than  in  effect  that 
their  allegations  are  true,  contain  no  allegations  that  the  mere 
notification  of  customers  that  plaintiffs  are  "unfair"  ha.s  any  special 
significance,  that  it  portended  injury,  or  was  intended  as  a  threat  or 
intimidation,  and  for  this  reason  we  hold  that  the  court  below  was 
not  justified  in  making  this  an  element  of  the  injunctional  order. 
In  other  respects  the  provisi(;ns  of  the  order  must  be  taken  to  cover 
and  include  acts  constituting  an  unlawful  conspiracy  or  boycott  — 
nothing  further  —  and  are  not  open  to  the  objections  urged  against 
them  by  defendants. 

As  to  the  third  sul)tlivision,  we  are  of  oi)inion  that  the  acts  there 
attempted  to  be  restrained  are  such  as  might  lawfully  be  conuuitted, 
and  are  not  subject  to  equitable  control.  It  is  fair  to  the  trial  judge 
to  say,  however,  in  this  connection,  that  the  order  was  drawn  by 
plaintiffs'  attorney,  as  is  usual  in  such  cases,  and  was  undoubtedly 
adopted  by  him  as  covering  only  the  case  made  by  the  complaints. 
But  it  goes  beyond  this,  and  restrains  acts  other  than  acts  constitut- 
ing bojTOtting.  This  particular  provision  specifically  enjoins  de- 
fendants, their  members,  agents,  and  representatives,  from  going 
upon  the  premises  where  plaintiffs  are  employed,  for  the  purpose 
of  ordering,  directing  or  notifying  men  belonging  to  the  various  allied 
unions  to  desist  from  work  upon  the  premises  by  reason  of  the  fact 
that  plaintiffs  are  employed  thereon. 

The  authorities,  as  already  noted,  very  generally  held  that  a 
strike  is  not  unlawful,  tiiat  members  of  labor  unions  may  singly 
or  in  a  body  quit  the  service  of  their  employer,  and  for  the  pinpose 
of  strengthening  their  association  may  persuade  and  induce  others 
in  the  same  occupation  to  join  their  imion,  and,  as  a  means  to  that 
end,  refuse  to  allow  their  members  to  work  in  places  where  non- 
union labor  is  employed.  18  Am.  ct  Kng.  Kncy.  (2d  ed.)  S4.  They 
may  refuse  to  have  any  sort  of  dealings  with  an  employer  of  non- 
union labor,  singly  or  collectively;  they  may  persuade  and  induce 
their  members  to  join  them,  and  there  would  seem  to  Ix^  no  rea.><on 
why  thev  should  l)e  limited  as  to  the  place  where  tiiey  may  do  such 


424  BOYCOTTS  [CHAP.  VII 

acts.  There  would  be  nothing  wrongful  or  unlawful  in  their  going 
upon  the  premises  of  the  owner,  wdth  his  permission,  where  their 
associates  were  engaged  at  work,  for  the  purpose  of  notifying  or 
ordering  them  to  desist  from  work  thereon,  unless,  perhaps,  their 
conduct  in  that  respect  be  so  persistent  and  annoying  to  the  owner 
of  the  premises  or  contractor  as  to  constitute  a  nuisance.  It  is  clear, 
upon  authority,  that  this  particular  part  of  the  injunctional  order 
goes  beyond  the  limits  of  the  law,  and  cannot  be  sustained. 

It  is  therefore  ordered  that  the  order  appealed  from  be  modified 
to  conform  to  the  views  herein  expressed,  and,  as  so  modified,  it  is 
affirmed. 

PIERCE  V.  STABLEMEN'S  UNION 

Supreme  Court  of  California.     1909 

156  Cal.  70 

Henshaw,  J.  The  plaintiff  went  into  equity  seeking  an  injunc- 
tion to  restrain  the  defendants  from  illegal  interference  with  its 
business.  Plaintiff  conducted  a  livery,  board,  and  feed  stable  in 
the  city  and  county  of  San  Francisco.  The  officers  and  representa- 
tives of  defendant  made  request  of  him  to  "unionize"  his  stable  by 
discharging  his  non-union  employees  and  employing  union  men 
in  their  places.  Upon  his  refusal,  a  strike  of  the  union  men  was 
declared.  Following  the  strike,  a  boycott  was  decreed.  A  patrol 
about  plaintiff's  place  of  business  was  established,  and,  under  the 
findings,  these  representatives  of  the  defendants,  the  pickets,  "called 
forth  in  loud,  threatening  and  menacing  tones  to  the  patrons  and 
customers  of  plaintiffs  not  to  patronize  plaintiffs  in  their  said  busi- 
ness; defendant,  the  Stablemen's  Union,  through  its  agents  and 
representatives,  has  stated  to  and  threatened  patrons  and  customers 
and  other  persons  dealing  with  plaintiffs  that  if  said  patrons  and 
customers  and  other  persons  continued  to  patronize  and  do  busi- 
ness with  plaintiffs,  said  Stablemen's  Union  would  cause  them  re- 
spectively to  be  boj'cotted  in  their  business."  Menacing  terms  and 
threatening  language  were  made  use  of  by  the  agents,  representa- 
tives, and  pickets  of  the  union  toward  the  employees  of  the  plaintiff 
such  as  "Unfair  stable,  union  men  locked  out  and  non-union  men 
put  in,  look  at  this  stable,  tiie  only  unfair  stable  on  Market  Street; 
the  stable  that  always  was  and  always  will  be  unfair.  This  is  a  scab 
stable.  When  we  catch  you  outside,  we  will  finish  you.  We  will 
get  you  yet.  It  is  a  scab  stable,  full  of  scabs.  We  will  fix  you  yet. 
It  is  a  matter  of  time  when  we  will  get  you  all  right.  You  will  never 
get  out  of  the  stable  alive.  We  will  break  you  in  half.  We  will  beat 
you  to  death.  When  we  catch  you  outside,  we  will  finish  you." 
A  judgment  for  an  injunction  followtul  upon  those  findings,  and 
that  judgment  Ijy  its  terms  commaiulcMl  the  defenchmt ,  its  agents, 
and  employees,  to  desist  and  refrain  "from  in  any  wise  interfering 


SECT.  II]  SECONDARY    HOVCOTT  425 

with,  or  hanissinR,  or  annoying,  or  (jhstructinj^  phiintifTs  in  the  con- 
duct of  tlie  business  of  their  stable,  known  as  the  Nevada  Stables, 
and  situated  at  number  1350  Market  Street,  in  the  city  and  county 
of  San  Francisco;  or  from  in  an\'  wise  ni(jl(*stin>^,  interfering  with, 
threat cninf/;,  intimidating^  or  harassing  any  emplcjycc  or  employees 
of  plaintiffs;  or  from  intimidating,  harassing,  or  interferiiiK  with 
any  customer  or  customers,  patron  or  patrons  of  plaintiffs  in  connec- 
tion with  the  business  of  plaintiffs,  either  by  boycott  or  by  threats 
of  boyc(jtt,  or  i)V  any  other  threats;  or  by  any  kind  of  force,  violence 
or  intimidation,  or  by  other  unlawful  means,  seeking  to  induce  any 
employee  or  employees  of  plaintiffs  to  withdraw  from  the  service  of 
plaintiffs;  or  by  any  kind  of  violence,  threats  or  intimidation  in- 
ducing, or  seeking  to  induce,  any  customer  or  customers,  patron  or 
patrons,  of  j^laintitTs  to  withdraw  their  patronaj^c  or  business  from 
them,  or  from  stationing  or  placing  in  front  of  said  plaintiffs'  place 
of  business  any  picket,  or  pickets,  for  the  purpose  of  injuring,  ob- 
structing or  in  any  wise  interfering  with,  the  business  of  plaintiffs, 
or  for  the  purpose  of  preventing  any  customer  or  customers,  patron 
or  patrons,  of  plaintiirs  from  doing  business  with  them;  or  from  in 
any  other  waj'  molesting,  intimidating  or  coercing,  or  attempt  to 
molest  or  intimidate  or  coerce  any  customer,  patron  or  employee  of 
plaintiffs  now  or  hereafter  dealing  with,  or  any  employee  now  or 
hereafter  employed  by,  or  working  for  plaintiffs  in  their  said  ijusiness." 
This  appeal  is  from  the  judgment.    The  findings  are  not  attacked. 

Appellants'  principal  contentions  upon  the  appeal,  however,  are 
the  following:'  ...  2.  That  the  ])oycott  is  a  legal  weapon  in  a 
trade  dispute  and,  therefore,  an  injunction  shoukl  not  i.ssue  to  re- 
strain its  use  or  threatened  use;  and  3.  That  "picketing"  as  an 
adjunct  to  the  boycott  is  itself  legal  and  may  not  be  forbidden.  .  .  . 

2.  In  considering  the  second  proposition,  whether  or  not  a  court 
of  etjuity  may  enjoin  a  boycott,  the  meaning  of  the  word  is  of  i^ri- 
mary  importance.  It  is  defined  in  4  Am.  «fc  Kng.  Ency.  of  Law,  2d 
ed.,  p.  85,  as  follows:  "The  boycott  is  a  conspiracy,  the  direct  object 
of  which  is  to  occasion  lo.ss  to  the  party  or  parties  against  whom  the 
conspiracy  is  ilirectcd,  and  the  means  connnonly  used  is  the  induc- 
ing of  others  to  withdraw  from  such  party  or  parties  their  jiatronage 
and  business  intercourse  by  threats,  that  unless  they  so  withdraw, 
the  members  of  the  combination  will  cause,  directly  or  indirectly, 
loss  of  a  similar  character  to  them."  Appellants  announce  their 
willingness  to  accept  this  definition,  sul)stituting  the  word  '•con- 
federacy" or  "coml)ination"  for  "conspiracy."  But  the  definition, 
even  as  so  amended,  it  will  be  noted  is  not  complete.  The  "means 
commonly  used"  are  specified,  but  other  means  may  be  and  fre- 
quently are  employed.     A  boycott   may  adopt   illegal  means  antl 

1  The  first  of  appellants'  contentions,  relating  to  a  California  statute  is  mnit- 
ted.  —  Ed. 


426  BOYCOTTS  [CHAP.  VII 

thus  become  a  "conspiracy,"  a  word  which  imports  illegahty;  or  a 
boycott  may  employ  legal  means  and  methods,  and  thus  be  merely 
a  legitimate  combination  by  a  number  of  men  to  accomplish,  within 
the  law,  a  legal  result.  The  crux  of  the  question  and  the  strain  in 
every  case  lie,  then,  in  the  means  employed.  We  think  that  today 
no  court  would  question  the  right  of  an  organized  union  of  em- 
ployees, by  concerted  action,  to  cease  their  employment  (no  con- 
tractual obligation  standing  in  the  way),  and  this  action  constitutes 
a  "strike.^'  We  think,  moreover,  that  no  court  questions  the  right 
of  those  same  men  to  cease  dealing  by  concerted  action,  either  socially 
or  by  way  of  business,  with  their  former  employer,  and  this  latter 
act,  in  its  essence,  constitutes  the  primary  boycott.  But  what  acts 
organized  labor  may  do,  and  what  means  it  may  adopt  to  accom- 
plish its  end,  without  violation  of  the  law,  have  presented  questions 
of  much  nicety,  over  which  the  courts  have  stood,  and  still  stand, 
widely  divided.  It  would  not  be  profitable  to  discuss  and  analyze 
these  widely  divergent  cases.  It  is  sufficient  to  formulate  briefly 
the  principles  adopted  in  this  state,  many  of  which  have  recently 
found  elaborate  expression  in  the  case  of  Parkinson  v.  Building 
Trades  Council  of  Santa  Clara,  154  Cal.  581  [98  Pac.  1027].  The 
right  of  united  labor  to  strike,  in  furtherance  of  trade  interests  (no 
contractual  obligation  standing  in  the  way)  is  fully  recognized.  The 
reason  for  the  strike  may  be  based  upon  the  refusal  to  comply  with 
the  employees'  demand  for  the  betterment  of  wages,  conditions, 
hours  of  labor,  in  the  discharge  of  one  employee,  or  the  engagement 
of  another  —  in  brief,  in  any  one  or  more  of  the  multifarious  con- 
siderations which  in  good  faith  may  be  believed  to  tend  toward  the 
advancement  of  the  employees.  After  striking,  the  employees  may 
engage  in  a  boycott,  as  that  word  is  here  employed.  As  here  em- 
ployed it  means  not  only  the  right  to  the  concerted  withdrawal  of 
social  and  business  intercourse,  but  the  right  by  all  legitimate  means 
—  of  fair  publication,  and  fair  oral  or  written  persuasion,  to  induce 
others  interested  in  or  sjanpathetic  with  their  cause,  to  withdraw 
their  social  intercourse  and  business  patronage  from  the  employer. 
They  may  go  even  further  than  this,  and  request  of  another  that  he 
withdraw  his  patronage  from  the  employer,  and  may  use  the  moral 
intimidation  and  coercion  of  threatening  a  like  boycott  against 
him  if  he  refuse  so  to  do.  This  last  proposition  necessarily  involves 
the  bringing  into  a  labor  dispute  between  A  and  B,  C,  who  has  no 
difference  with  cither.  It  contemplates  that  C,  upon  the  request 
of  B,  and  under  the  moral  intimidation  lost  B  boycott  him,  may 
thus  be  constrained  to  with(haw  his  patronage  from  A,  with  whom 
he  has  no  controversy.  This  is  the  "secondary  boycott,"  the  legality 
of  which  is  vigorously  denied  bj'^  the  English  courts,  the  federal 
courts,  and  by  the  courts  of  many  of  the  states  of  this  nation.  With- 
out presenting  the  avitlujiitics,  which  are  multitudinous,  suffice  it  to 
state  the  other  view  in  language  of  the  President  of  the  United 


SECT.  II]  SECONDARY   BOYCOTT  427 

States  l>ut  rofontly  uttered:  "A  \u)(\y  of  workmen  are  dissatisfied 
with  the  terms  of  their  emplo3-m('nt.  They  seek  to  compel  their 
employer  to  come  to  their  terms  by  striking.  They  may  legally  do 
so.  The  loss  and  inconvenience  he  suffers  he  cannot  conji)lain  of. 
Hut  when  they  seek  to  compel  third  jx-rsons,  who  have  no  (juarrel 
with  their  employer,  to  withdraw  from  all  association  witli  him 
hy  threats  that  unless  such  third  persons  do  so  the  workmen  will 
inHict  similar  injury  on  such  third  persons,  the  combination  is 
oppressive,  involves  duress,  and  if  injury  results,  it  is  actionable" 
(President  Taft,  McCluir.s  Mtujnzinc,  June,  1!)()<),  p.  2(M.j  Notwith- 
standing the  threat  dinnit}-  which  attaches  to  an  utterance  such  a.s 
this,  which,  as  has  been  saitl,  is  but  the  expression  of  numerous 
courts  upon  the  subject-matter,  this  court,  after  great  deliberation, 
took  what  it  believed  to  be  the  truer  and  more  advanced  ground 
above  indicated  and  fully  set  forth  in  Parkinson  r.  Jiuililing  Trades 
Council,  etc.,  154  Cal.  oSl  [98  Pac.  1027].  In  this  respect  this  court 
recognizes  no  substantial  distinction  between  the  so-called  primary 
and  secondary  boycott.  Each  rests  upon  the  right  of  the  union  to 
wifiidraw  its  patronage^  from  its  employer  and  to  induce  by  fair 
means  any  and  all  other  persons  to  tlo  the  same,  and  in  e.xerci.se 
of  those  means,  as  the  unions  would  have  the  unquestioned  right 
to  withhold  their  patronage  from  a  third  person  who  continued  to 
deal  with  their  employer,  so  they  have  the  unquestioned  right  to 
notify  such  third  i:)ers()n  that  they  will  withtlraw  their  patronage 
if  he  continues  so  to  deal.  However  opposed  to  the  weight  of  federal 
authority  the  views  of  this  Court  are,  that  they  are  not  unique  may 
be  noted  by  reading  National  Protective  Association  v.  Cumming, 
170  N.  Y.  315  [88  Am.  St.  Rep.  048,  03  N.  E.  309];  Lindsay  /•.  Mon- 
tana Federation  of  Labor,  37  Mont.  204  [127  Am.  St.  Rep.  422,  90 
Pac.  127,  18  L.  R.  A.  (n.  s.)  707],  where  the  highest  courts  of  those 
states  formulate  and  adopt  like  principles. 

It  has  been  said  tiiat  it  is  important  to  any  correct  understanding 
of  or  adjudication  upon  such  (juestions  that  a  definition  of  the  word 
"boycott"  should  be  first  stated.  Thus,  to  say  that  a  boycott  is  a 
"conspiracy"  immediately  implies  illegality,  and  puts  the  conduct 
of  the  bovcott(>rs  under  the  l)an  of  tiie  law.  So,  also,  does  the  defini- 
tion which  descril)es  boycotting  as  "illegal  coercion"  designed  to 
accomplish  a  certain  end.  As  we  have  undertaken  to  define  boycott, 
it  is  an  organized  effort  to  persuade  or  coerce,  which  may  be  legal 
or  illegal,  according  to  the  means  employed.  In  other  juristlictions 
where  a  definition  is  given  to  a  Ijoycott  which  imports  illegality  the 
injunction  will  of  course  lie  against  boycotting  as  such.  In  this  state 
the  injunction  will  issue,  depending  upon  the  circumstances  whether 
the  means  employed,  or  threatened  to  W  emploved,  are  legal  or 
ill(>gal. 

3.  We  are  thus  brought  to  consider  the  method  of  "picketing."  the 
use  of  which  appellants  contend  is  a  l(>gal  weapon  in  their  hands.   .   .  . 


428  BOYCOTTS  [CHAP.  VII 

In  this  country  a  man's  constitutional  liberty  means  far  more 
than  his  mere  personal  freedom.  It  means  that,  among  other  rights, 
his  is  the  right  freely  to  labor  and  to  own  the  fruits  of  his  toil.  (Ex 
parte  Jentzsch,  112  Cal.  468  [4  Pac.  803]).  Any  act  of  boj^cotting, 
therefore,  which  tends  to  impair  this  constitutional  right  freely  to 
labor,  by  means  passing  beyond  moral  suasion,  and  playing  bj^  in- 
timidation upon  the  physical  fears,  is  unlawful.  .  .  . 

A  picket,  in  its  very  nature,  tends  to  accomplish,  and  is  designed 
to  accomplish,  these  very  things.  It  tends  and  is  designed  by  ph3's- 
ical  intimidation,  to  deter  other  men  from  seeking  employment 
in  the  places  vacated  by  the  strikers.  It  tends  and  is  designed  to 
drive  business  away  from  the  boycotted  place,  not  by  the  legitimate 
methods  of  persuasion,  but  by  the  illegitimate  means  of  physical 
intimidation  and  fear.  .  .  .  We  think  it  plain  that  the  very  end  to 
be  attained  by  picketing,  however  artful  may  be  the  means  to  ac- 
complish that  end,  is  the  injury  of  the  boycotted  business  through 
physical  molestation  and  physical  fear  caused  to  the  emploj^er,  to 
those  whom  he  may  have  employed  or  who  may  seek  employment 
from  him,  and  to  the  general  public.  The  boycott  having  employed 
these  means  for  this  unquestioned  purpose,  is  illegal,  and  a  court 
will  not  seek  by  over-niceties  and  refinements  to  legalize  the  use  of 
this  unquestionably  illegal  instrument.  .  .  . 

In  conclusion,  then,  and  applying  these  principles  to  the  injunc- 
tion here  under  consideration,  it  appears  that,  while  the  injunction 
was  properly  granted,  it  was  broader  in  its  terms  than  the  law  war- 
rants. It  was,  for  example,  too  broad  in  restraining  defendants 
from  "in  any  wise  interfering  with"  plaintiff's  business,  since  the 
interference  which  we  have  discussed,  of  publication,  reasonable 
persuasion,  and  threat  to  withdraw  patronage,  is  legal  and  such  as 
defendants  could  employ.  So,  also,  was  the  injunction  too  broad  in 
restraining  defendants  from  "intimidating  any  customer  by  boy- 
cott or  threat  of  boycott"  since,  as  has  been  said,  the  secondary 
boycott  is  likewise  a  legal  weapon.  In  all  other  respects,  however, 
the  injunction  was  proper. 

The  trial  court  is  directed  to  modify  its  injunction  in  the  par- 
ticulars here  specified,  and  in  all  other  respects  the  judgment  will 
stand  affirmed.^ 

LoRiGAN,  J.,  Melvin,  J.,  and  Beatty,  C.  J.,  concurred.^ 

^  Angellotti,  J.,  and  Sloss,  J.,  rendered  a  concurring  opinion.  Shaw,  J.,  dis- 
sented from  that  part  of  the  opinion  relating  to  the  secondary  boycott.  —  Ed. 

-  Accord:  Parkinson  v.  Building  Trades  Council,  154  Cal.  581.  See  also,  Union 
Labor  Hospital  Assn.  v.  Vance  Redwood  Lumber  Co.,  158  Cal.  551;  Truax  v. 
Bisbee  Local,  19  Ariz.  379;  Meier  v.  Spccr,  96  Ark.  018. 


SECT.  II]  SECONDARY   BOYCOTT  429 

HOPKINS  V.  OXLEY  S']'A\  K     Co. 
U.  S.  Circuit  Court  of  Appeals,  Eighth  Circuit.     1897 

83  Fed.  912 

This  was  a  bill  for  an  injunction  hy  the  ()xlcy  Stave  Co.  asainfit 
the  Coopers'  lnternati(jnal  I'nicjn  of  North  America,  Lod^e  No.  18; 
the  Trades  Assembly  of  Kansas  City,  Kan.;  and  a  number  of  the 
individual  members  of  such  organizations.  As  against  the  organiza- 
tions, the  bill  was  dismi.ssed,  and  a  temjjorary  injunction  was  granted 
against  the  remaining  defendants,  from  whicii  they  appeal.   .   .  . 

TiiAYER,  Circuit  Judge.  This  case  comes  on  aj)peal  from  an  order 
made  by  the  Circuit  Court  of  the  United  States  for  the  district  of 
Kansas,  granting  an  interlocutory  injunction.  The  motion  for  the 
injunction  was  iieartl  on  the  bill  and  supporting  afhdavits,  and  on  cer- 
tain opposing  afhdavits.  There  is  no  substantial  contrcjversy  with  ref- 
erence to  the  material  facts  disclo.sed  by  the  bill  and  accompanying 
affidavits,  which  may  be  summarized  as  follows:  The  appellants,  H. 
C.  Hopkins  and  others,  who  were  the  defendants  below,  are  memlx-rs 
of  two  voluntary,  unincorporateil  associations,  termed,  respectively, 
the  Coopers'  International  Union  of  North  America,  Lodge  No.  18, 
of  Kansas  Citj',  Kan.,  and  the  Trades  Assembly  of  Kansas  City, 
Kan.  The  first  of  these  associations  is  a  labor  organization  com- 
posed of  coopers,  which  has  local  lodges  in  all  the  important  trade 
centers  throughout  the  United  States  and  Canada.  The  otiier 
association,  the  Trades  Assembly  of  Kansas  City,  Kan.,  is  a  body 
composed  of  representatives  of  many  different  labor  organizations 
of  Kansas  City,  Kan.,  and  is  a  branch  of  a  general  organization  of 
the  same  name  which  exists  and  operates,  b}'  means  of  local  assem- 
blies, in  all  the  principal  commercial  centers  of  the  United  States  and 
Europe.  The  Oxley  Stave  Co.,  the  plaintiff  below  and  appellee  here, 
is  a  Missouri  corporation,  which  is  engaged  at  Kansas  City,  Kan., 
where  it  has  a  large  cooperage  plant,  in  the  manufacture  of  barrels 
and  casks  for  packing  meats,  flour,  and  other  connnodities.  It  sells 
many  barrels  and  caslvs  annually  to  several  large  packing  associations 
located  at  Kansas  City,  Mo.,  and  Kan.sas  City,  Kan.,  and  also  has 
customers  for  its  product  in  sixteen  other  states  of  the  Union,  and 
in  Europe.  Its  annual  output  for  the  year  1895  was  of  the  value  of 
S104,173.  For  .some  tune  prior  to  November  16,  1895,  the  plain- 
tiff company  had  used  successfully  in  its  cooperage  plant  at  Kansas 
City,  Kan.,  certain  machines  for  hooping  barrels,  which  materially 
lessened  the  cost  of  making  the  same.  It  did  not  confine  it.self  ex- 
clusively to  the  manufacture  of  machine-hooped  barrels,  but  manu- 
factured, besides,  many  hand-hooped  barrels,  and  cmploj-cd  a  large 
number  of  coopers  for  that  purpose.  The  wages  paid  to  the  coo|x>rs 
in  its  employ  were  satisfactory,  and  no  controversy  had  arisen  be- 
tween the  plaintiff  and  its  employees  on  that  score.     On  or  al)out 


430  BOYCOTTS  [CHAP.  VII 

November  16,  1895,  the  plaintiff  company  was  informed  by  a  com- 
mittee of  persons  representing  the  local  lodge  of  the  Coopers'  Union, 
No.  18,  at  Kansas  City,  Kan.,  that  it  must  discontinue  the  use  of 
hooping  machines  in  its  plant.  Said  committee  further  informed 
the  plaintiff  that  they  had  already  notified  one  of  its  largest  cus- 
tomers, Swift  &  Co.,  that,  in  making  contracts  with  the  plaintiff 
for  barrels,  the  Coopers'  Union  would  require  such  customer,  in 
future,  to  specify  that  all  barrels  supplied  to  it  by  the  plaintiff  must 
be  hand-hooped.  None  of  the  members  of  this  committee  were 
employees  of  the  plaintiff  company,  and,  with  one  exception,  none 
of  the  present  appellants  were  or  are  in  its  employ.  At  a  later  date 
the  Coopers'  Union,  No.  18,  called  to  its  assistance  the  Trades  As- 
sembly of  Kansas  City,  Kan.,  for  the  purpose  of  enforcing  its  afore- 
said demand;  and  on  or  about  Januar}^  14,  1896,  a  committee  of 
persons  representing  both  of  said  organizations  waited  upon  the 
manager  of  the  plaintiff  company,  and  notified  him,  in  substance, 
that  said  organizations  had  each  determined  to  boycott  the  product 
of  the  plaintiff  company  unless  it  discontinued  the  use  of  hooping 
machines  in  its  plant,  and  that  the  boycott  would  be  made  effective 
on  January  15,  1896.  .  .  . 

It  was  also  charged,  and  the  charge  was  not  denied,  that  the  mem- 
bers of  the  voluntary  organizations  to  which  the  defendants  be- 
longed had  conspired  and  agreed  to  force  the  plaintiff,  against  its 
will,  to  abandon  the  use  of  hooping  machines  in  its  plant,  and  that 
this  object  was  to  be  accomplished  by  dissuading  the  plaintiff's 
customers  from  buying  machine-hooped  barrels  and  casks;  such 
customers  to  be  so  dissuaded  through  fear,  inspired  by  concerted 
action  of  the  two  organizations,  that  the  members  of  all  the  labor 
organizations  throughout  the  country  would  be  induced  not  to  pur- 
chase any  commodity  which  might  be  packed  in  such  machine- 
hooped  barrels  or  casks.  The  bill  charged,  by  proper  averments  (and 
no  attempt  was  made  to  prove  the  contrary),  that  the  defendants 
were  persons  of  small  means,  and  that  the  plaintiff  would  suffer  a 
great  and  irreparable  loss,  exceeding  $100,000,  if  the  defendants  were 
allowed  to  carry  the  threatened  boycott  into  effect  in  the  manner  and 
form  proposed.  The  injunction  which  the  court  awarded  against 
the  defendants  was,  in  substance,  one  which  prohibited  them,  until 
the  final  hearing  of  the  case,  from  making  effective  the  threatened 
boycott,  and  from  in  any  way  menacing,  hindering,  or  obstructing 
th(!  plaintiff  company,  by  interfering  with  its  business  or  customers, 
fioni  the  full  enjoyment  of  such  patronage  and  business  as  it  might 
enjoy  or  possess  independent  of  such  interference. 

The  first  proposition  contended  for  by  the  appellants  is  that  the 
trial  court  acted  without  jurisdiction  in  awarding  an  injunction. 
The  ground  for  this  contention  consists  in  the  fact  that  in  the  l)ill, 
as  oiiginally  filed,  two  persons  were  named  as  def(Mulanls  who  were 
citizens  and  residents  of  the  State  of  Missouri,  under  whose  laws  the 


SECT.  II]  SECONDARY   BOYCOTT  431 

Oxloy  Stavo  Co.  was  incorixiratcd.  Hiii  as  the  caso  was  disiuisst'd 
as  to  those  defendants,  and  as  to  the  two  voluntary  unincorporated 
associations,  and  as  to  all  the  members  thereof  who  were  not  specifi- 
cally named  as  defendants  in  the  hill  of  comphiint,  before  an  in- 
junction was  awarded,  and  as  the  bill  was  retained  only  as  against 
persons  concerned  in  the  alleged  conspiracy  who  were  citizens  and 
residents  of  the  State  of  Kansas,  tlu.'  objection  to  the  jurisdiction 
of  the  trial  court  is,  in  our  opinion,  without  merit.  Oxley  Stave  Co. 
V.  Coopers'  International  I'nion  of  North  America,  72  Fe(l.  (j9.'>.  .  .  . 
We  turn,  thcrcrore,  to  the  merits  of  the  controversy.  The  sub- 
stantial question  is  whether  the  agreement  entered  into  by  the  mem- 
bers of  the  two  unincorporated  associations  to  boycott  the  contents 
of  all  barrels,  casks,  and  packajijes  made  by  the  (J.xley  Stave  Co. 
which  were  hooped  by  machinery  was  an  agreement  against  which 
a  court  of  ('(juity  can  alTord  relief,  preventive  or  otherwi.se.  The 
contention  of  the  appellants  is  that  it  was  a  lawful  agreement,  such 
as  they  had  the  right  to  make  and  carry  out,  for  the  purpose  of  main- 
taining the  rate  of  wages  then  paid  to  journeymen  coopers,  and 
that,  being  lawful,  tiie  injury  occasioned  to  the  plaintifT  comixmy, 
no  matter  how  great,  was  an  injury  against  which  neitiier  a  court 
of  law  nor  equity  can  afford  any  redress.  .  .  .  We  [do  not]  deem  it 
necessary  on  the  present  occasion  to  define  the  term  "boycott"; 
for,  whatever  may  be  the  meaning  of  that  word,  no  controversy 
exists  in  the  present  case  concerning  the  means  that  were  to  be  em- 
ployed by  the  members  of  the  two  labor  organizations  for  the  pur- 
pose of  compelling  the  plaintiff  company  to  abandon  the  use  of 
hooinng  maciiines.  It  is  conceded  that  their  pvn-pose  was  to  warn 
all  of  the  plaintiff's  immediate  customers  not  to  purchase  machine- 
hooped  barrels  or  casks,  and  to  warn  wholesale  and  retail  dealers 
everywhere  not  to  handle  provisions  or  other  commodities  which 
were  packed  in  such  barrels  or  casks.  This  warning  was  to  be  made 
etTectual  by  notifying  the  members  of  all  associated  labor  organiza- 
tions throughout  tiie  United  States,  Canada,  and  Europe,  not  to 
purchase  provisions  or  other  commodities,  and,  as  far  as  possible, 
to  dissuade  others  from  purchasing  provisions  or  other  commodities 
which  were  packed  in  machine-hooped  barrels  or  casks.  The  object 
of  the  conspiracy,  it  will  be  seen,  was  to  interfere  with  the  com- 
plainant's business,  and  to  deprive  the  complainant  company,  and 
numerous  other  persons,  of  the  right  to  conduct  their  business  as 
they  thought  proper.  To  this  end,  those  who  were  engaged  in  the 
conspiracy  intendcHJ  to  excite  the  fears  of  all  persons  who  were  en- 
gaged in  making  barrels,  or  who  handl(>d  commodities  packed  in 
barrels,  that,  if  they  diil  not  ol)ey  the  orders  of  the  associateil  labor 
organizations,  they  would  incur  the  active  hostility  of  all  the  mem- 
bers of  those  associations,  suffer  a  great  financial  loss,  and  possibly 
run  the  risk  of  sustaining  some  pcMsonal  injury.  It  may  l)e  conceded 
that,  when  the  defendants  (Mitcred  into  the  combination  in  question, 


432  BOYCOTTS  [CHAP.  VII 

they  had  no  present  intention  of  resorting  to  actual  violence  for  the 
purpose  of  enforcing  their  demands;  but  it  is  manifest  that  by  con- 
certed action,  force  of  nmnbers,  and  by  exciting  the  fears  of  the 
timid,  they  did  intend  to  compel  many  persons  to  surrender  their 
freedom  of  action,  and  submit  to  the  dictation  of  others  in  the  man- 
agement of  their  private  business  affairs.  Another  object  of  the 
conspirac}^,  which  was  no  less  harmful,  was  to  deprive  the  public 
at  large  of  the  advantages  to  be  derived  from  the  use  of  an  inven- 
tion which  was  not  only  designed  to  diminish  the  cost  of  making 
certain  necessary  articles,  but  to  lessen  the  labor  of  human  hands. 

While  the  courts  have  invariably  upheld  the  right  of  individuals 
to  form  labor  organizations  for  the  protection  of  the  interests  of  the 
laboring  classes,  and  have  denied  the  power  to  enjoin  the  members 
of  such  associations  from  withdrawing  peaceably  from  any  service, 
either  singly  or  in  a  body,  even  where  such  withdrawal  involves  a 
breach  of  contract  (Arthur  v.  Oakes,  11  C.  C.  A.  209,  63  Fed.  310), 
yet  they  have  very  generally  condemned  those  combinations  usually 
termed  "boycotts,"  which  are  formed  for  the  purpose  of  interfering, 
otherwise  than  by  lawful  competition,  with  the  business  affairs  of 
others,  and  depriving  them,  by  means  of  threats  and  intimidation, 
of  the  right  to  conduct  the  business  in  which  they  happen  to  be  en- 
gaged according  to  the  dictates  of  their  own  judgments.  The  right 
of  an  individual  to  carry  on  his  business  as  he  sees  fit,  and  to  use 
such  implements  or  processes  of  manufacture  as  he  desires  to  use, 
provided  he  follows  a  lawful  avocation,  and  conducts  it  in  a  lawful 
manner,  is  entitled  to  as  much  consideration  as  his  other  personal 
rights;  and  the  law  should  afford  protection  against  the  efforts  of 
powerful  combinations  to  rob  him  of  that  right  and  coerce  his  will 
by  intimidating  his  customers  and  destroying  his  patronage.  A  con- 
spiracy to  compel  a  manufacturer  to  abandon  the  use  of  a  valuable 
invention  bears  no  resemblance  to  a  combination  among  laborers  to 
withdraw  from  a  given  employment  as  a  means  of  obtaining  better 
pay.  Persons  engaged  in  any  service  have  the  power,  with  which  a 
court  of  equity  will  not  interfere  by  injunction,  to  abandon  that  serv- 
ice, either  singly  or  in  a  body,  if  the  wages  paid  or  the  conditions 
of  employment  are  not  satisfactory;  but  they  have  no  right  to  dic- 
tate to  an  employer  what  kind  of  implements  he  shall  use,  or  whom 
he  shall  employ.  Many  courts  of  the  highest  character  and  ability 
have  held  that  a  combination  such  as  the  one  in  question  is  admitted 
to  have  been  is  an  unlawful  conspirac}^,  at  common  law,  and  that  an 
action  will  lie  to  recover  the  damages  which  one  has  sustained  as 
the  direct  result  of  such  a  conspiracy;  also,  that  a  suit  in  equity 
may  be  maintained  to  prevent  the  persons  concerned  in  such  a  com- 
bination from  carrying  the  same  into  effect,  when  the  damages  would 
be  irreparable,  or  when  such  a  proceeding  is  necessary  to  prevent 
a  multiplicity  of  suits.  The  test  of  the  right  to  sue  in  equity  is  whether 
the  combination  complained  of  is  so  far  unlawful  that  an  action  at 


SECT.  II]  SECONDARY   BOYCOTT  433 

law  will  lie  to  rooovor  the  daniuKcs  iiifii«tcd,  and  whothor  tho  reined}' 
at  law  is  adequate  to  redress  the  wrong.  If  the  remedy  at  law  is 
for  any  reason  inadequate,  resort  may  be  had,  a.s  in  other  cases,  to 
a  court  of  equity.  .  .  . 

We  (liiiik  it  is  entirely  char,  upon  tlie  authorities,  that  the  con- 
duct of  which  tlie  defendants  below  were  accu.sed  cannot  be  justified 
on  the  ground  that  the  acts  contemplated  were  legitimate  and  law- 
ful means  to  prevent  a  possible  future  decline  in  wages,  and  to  secure 
employment  for  a  greater  number  of  coopers.  No  decrease  in  the 
rate  of  wages  had  l)een  threatened  by  the  Oxley  Stave  Co.,  and, 
with  one  exception,  the  members  of  the  combination  were  not  in 
the  employ  of  the  plaintiff  company.  The  members  of  the  com- 
bination undertook  to  prescribe  the  manner  in  which  the  plaintiff 
company'  should  manufacture  barrels  and  casks,  and  to  enforce 
obedience  to  its  orders  by  a  species  of  intimidation  which  is  no  less 
harmful  than  actual  violence,  and  which  usually  ends  in  violence. 
The  combination  amounted,  therefore,  to  a  conspiracy  to  wrong- 
full}'  deprive  the  plaintiff  of  its  right  to  manage  its  business  accord- 
ing to  the  dictates  of  its  own  judgment.  Aside  from  the  foregoing 
considerations,  the  fact  cannot  be  overlooked  that  another  object 
of  the  conspiracy  was  to  deprive  the  public  at  large  of  the  benefits 
to  be  derived  from  a  labor-saving  machine  which  seems  to  have 
been  one  of  great  utilit}-.  If  a  c()ml)ination  to  that  end  is  pronounced 
lawful,  it  follows,  of  course,  that  combinations  may  be  organized 
for  the  purpose  of  preventing  the  use  of  harvesters,  threshers,  steam 
looms,  and  printing  presses,  typesetting  machines,  sewing  machines, 
and  a  thousand  other  inventions  which  have  added  immeasurably 
to  the  productive  power  of  human  laljor,  antl  the  comfort  and  wel- 
fare of  mankind.  It  results  from  these  views  that  the  injunction 
was  properly  awarded,  and  the  order  appealed  from  is  accordingly 
affirmed.^ 

'  Caldwell,  J.,  rendered  an  interesting  dissenting  opinion.  —  Ed. 

Attitudk  of  Federal  Courts  Sitting  in  States  under  whose  Law  the 
Secondary  Boycott  is  L.^^wful.  Prior  to  1908  several  decisions  had  been  ren- 
dered b}'  federal  courts  sitting  in  California,  holding  the  secondary  boycott  il- 
legal. See  Loewe  v.  California  State  Fed.  of  Labor,  139  Fed.  71  (1905);  Seattle 
Brewing  &  Malting  Co.  v.  Hansen,  144  Fed.  1011  (1905);  Sailors'  Union  r.  Ham- 
mond Lumber  Co.,  156  Fed.  450  (1907).  In  190S  the  California  Supreme  Court 
in  the  case  of  Parkin.son  r.  Building  Trades  Council,  154  Cal.  5S1,  nupra,  p.  150, 
decided  that  under  the  law  of  California  the  secondary  boycott  was  not  illegal 
and  that  it  therefore  might  freely  be  practiced  within  the  state.  This  decision 
was  followed  and  approved  by  the  California  Supreme  Court  the  following  year 
in  the  case  of  Pierce  r.  Stablemen's  Union,  15ti  Cal.  70,  trupra,  p.  424.  In  1911 
in  the  ca.se  of  Loewe  v.  California  State  Fed.  of  Labor,  189  Fed.  714,  the  question 
arose  in  a  federal  court  in  California  as  to  whether  a  secondary  boycott  occurring 
within  the  State  of  California,  although  similar  action  had  been  declared  by  the 
Supreme  Court  of  the  state  lawful  under  California  law,  should  be  declared  un- 
lawful by  the  federal  court  sitting  within  that  state. 

Sec  also  Rockv  Mountain  Hell  Telephone  Co.  v.  Montana  Fed.  of  Labor,  15G 
Fed.  809  (1907).' 


434  BOYCOTTS  [CHAP.  VII 

BOSSERT  V.  DHUY 

Court  of  Appeals  of  New  York.     1917 

221  N.  Y.  342 

Appeal  by  the  defendants  from  a  judgment  of  the  Appellate  Divi- 
sion of  the  Supreme  Court  in  the  second  judicial  department,  en- 
tered January  7,  1915,  affirming  a  judgment  in  favor  of  plaintiffs 
entered  upon  a  decision  of  the  court  on  trial  at  Special  Term  in  an 
action  for  an  injunction.  .  .  . 

Chase,  J.  The  plaintiffs  are  co-partners  engaged  in  the  borough 
of  Brooklyn,  city  of  New  York,  in  the  manufacture,  purchase  and 
sale  of  doors,  sash,  blinds,  trim,  lumber  and  other  kinds  of  wood- 
work. They  employ  from  five  to  six  hundred  persons  in  their  fac- 
tories in  the  production  of  such  woodwork,  but  do  not  perform  any 
work  in  the  installation  of  the  woodwork  so  manufactured  by  them. 
All  of  such  woodwork  is  sold  to  builders.  The  defendants  are  officers, 
representatives  and  agents  of  the  United  Brotherhood  of  Carpenters 
and  Joiners  of  America  and  of  its  branches  in  the  city  of  New  York 
and  vicinity.  The  United  Brotherhood  of  Carpenters  and  Joiners 
of  America,  hereinafter  called  the  Brotherhood,  is  a  voluntary  unin- 
corporated association  of  workmen.  It  has  a  membership  of  about 
200,000  journeymen  carpenters  with  headquarters  at  Indianapolis, 
Indiana,  subdivided  into  about  1900  local  branches,  also  voluntary 
unincorporated  associations,  over  seventy  of  which  local  associa- 
tions are  within  the  limits  of  the  city  of  New  York. 

All  manufacturers  of  woodwork  who  do  not  operate  under  an 
agreement  with  said  Brotherhood  or  one  of  its  branches  and  do  not 
agree  to  employ  union  carpenters  exclusively,  are  known  by  the 
defendants  as  non-union,  unfair  or  open  shop  manufacturers  and 
their  products  are  known  as  non-union,  unfair  or  open  shop  ma- 
terials. 

The  plaintiffs  operate  an  open  shop,  selecting  their  employees 
without  discrimination  against  any  person  on  the  ground  that  he 
is  or  is  not  a  member  of  the  local  union,  and  pursue  this  policy  as  a 
matter  of  principle  and  not  for  mercenary  reasons,  and  for  many 
years  the  relations  between  the  plaintiffs  and  their  employees  were 
mutually  satisfactory.  The  Brotherhood  issues  a  monthly  paper, 
its  official  organ,  called  The  Carpenter  and  holds  biennial  conven- 
tions attended  by  delegates  elected  from  the  local  unions.  Since 
1904  the  Brotherhood  has  been  engaged  in  a  general  combination 
among  other  things  to  prevent  the  employment  of  non-union  car- 
penters or  woodworkers  in  woodworking  factories,  or  in  erecting 
certain  kinds  of  woodwork  and  has  adopted  rules  which  forbid  its 
ni('ni})ers  from  working  for  any  employer  who  employs  any  so-called 
non-union  carjicnters,  and  from  working  on  or  in  connection  with 
any  building  where  materials  are  used  which  are  purchased  from 


SECT.  II]  SECONDARY   BOYCOTT  435 

any  employer  who  employs  noii-imion  ejirix-nters,  and  the  constitu- 
tion of  the  lirothcrhood  provides  that  it  shall  he  the  duty  (jf  local 
unions  to  prevent  its  members  encouraj^inii;  the  use  of  any  unfair 
material  by  handlinjj;  the  same. 

From  time  to  lime  the  lirotherhood  in  coniicction  with  the  joint 
district  council  of  the  carpenters'  union  lKi\e  circulated  a  letter 
which  in  part  is  as  follows: 

"  To  Owners,  Architects,  Contractors,  and  linildcrs  of  Sew  York  City 
and  Vicinity: 

■'Gentlemen.  —  In  order  to  a\oid  any  lal»<)r  troul)le  on  jobs  you 
are  interested  in  we  deem  it  necessary  to  request  you  to  stijjulate  in 
all  your  contracts  a  clause  guaranteeinK  the  emploj-ment  of  recog- 
nized union  men,  also  a  clause  requiring  in  the  execution  of  all  con- 
tracts for  carpenter  work  the  em|)loyment  of  union  made  trim, 
mantels,  parcjuet  flooring,  and  other  siiop  made  carpenter  work. 
This  applies  particulai'ly  to  all  classes  of  kalaineiii  and  metal  co\-ered 
work. 

"We  desire  to  inform  you  that  unless  this  material  has  been  con- 
structed under  strict  union  conditions  we  shall  refuse  to  handle  it. 
It  being  a  well-known  fact  tiuit  the  agents  of  unfair  antl  non-union 
firms  resort  to  misstatements  in  order  to  obtain  contracts  in  this 
city  we  reconunend  that  before  placing  contracts  with  any  firm  not 
on  this  hst  you  communicate  with  this  organization  regarding  the 
union  standing  of  said  firm. 

"Stipulating  in  your  contract  that  your  trim,  {>tc.,  must  bear 
this  union  label  (here  appears  a  cut  of  lal)ol)  will  avoid  all  complica- 
tions." 

The  rules  of  the  Brotherhood  provitle  in  substance  that  if  any 
member  is  proven  guilty  of  working  with  non-union  carpenters  or 
on  material  made  in  a  shop  where  non-union  carpenters  are  em- 
ployed, he  shall  I)e  subject  to  fine  or  e.xpulsion  from  the  association. 

The  defendants  having  attempted  to  enforce  the  rules  of  the 
Brotherhood  against  its  members  handling  non-union  made  w(X)d- 
work,  this  action  was  brought  by  the  plaintiffs  to  obtain  an  injunc- 
tion against  the  defendants  taking  (in  sul)stance)  any  action  affect- 
ing the  plaintiffs  and  the  building  material  made  in  their  mills.  .  .  . 

It  is  unnecessary  in  the  case  now  under  consideration  to  hold 
that  in  all  cases  and  under  all  circumstances,  whatever  a  man  may 
do  alone  he  may  do  in  combination  with  others,  l)Ut  it  was  dearly 
established  in  the  National  Protective  Association  case  that  work- 
ingm(>n  may  organize  for  purposes  deemed  beneficial  to  them.selves 
and  in  that  organized  cai)acity  may  determine  tiiat  their  members 
shall  not  work  with  non-members  or  upon  specified  work  or  kiiuls 
of  work. 

It  was  not  illegal,  therefore,  for  the  defendants  to  refuse  to  allow 
members  of  the  Rrotherhood  to  work  in  the  plaintiffs'  mill  with 
non-union  men.     The  same    reasoning    results  in  holding  that   the 


436  BOYCOTTS  [CHAP.  VIT 

Brotherhood  may  by  voluntary  act  refuse  to  allow  its  members  to 
work  in  the  erection  of  materials  furnished  by  a  non-union  shop. 
Such  action  has  relation  to  work  to  be  performed  by  its  members 
and  directly  affects  them.  The  voluntary  adoption  of  a  rule  not  to 
work  upon  non-union  made  material  and  its  enforcement  differs 
only  in  degree  from  such  voluntary  rule  and  its  enforcement  in  a 
particular  case.  Such  a  determination  also  differs  entirely  from  a 
general  boycott  of  a  particular  dealer  or  manufacturer  with  a  ma- 
licious intent  and  purpose  to  destroy  the  good  will  or  business  of 
such  dealer  or  manufacturer.  An  act,  when  clone  maliciously  and 
for  an  illegal  purpose,  may  be  restrained;  and  held  to  be  within 
the  bounds  of  reasonable  business  competition  when  done  in  good 
faith  and  for  a  legal  purpose.  (See  Ruling  Case  Law,  vol.  16,  pp. 
431,  432  and  433.) 

It  appears  by  findings  that  are  uncontrovertibly  established  by 
reason  of  the  unanimous  affirmance  of  the  Special  Term  by  the  Ap- 
pellate Division  that  it  was  not  the  intent  and  purpose  of  the  defend- 
ants in  this  case  to  injure  the  good  will  or  business  of  the  plaintiffs 
as  individuals  or  of  non-union  manufacturers  generally.  Tn  refusing, 
.  to  work  on  non-union  made  material,  they  were  conserving  their  ^ 
\  interests  as  individuals  and  as  members  of  the  Brotherhood,  and  in 
so  doing  necessarily  interfered  to  some  extent  with  non-union  manu- 
facturers. Such  interference  necessarily  resulted  to  some  extent 
also  in  the  National  Protective  Association  case,  and  such  fact  did 
not  prevent  the  court  sustaining  the  action  of  the  defendants 
therein.  The  importance  of  the  facts  in  each  case  involving  individ- 
ual or  associate  action  affecting  the  relations  of  employers  and 
employees  is  such  that  even  although  it  materially  increases  the 
length  of  this  opinion,  we  quote  some  of  the  important  findings 
mentioned : 

"  1.  The  United  Brotherhood  of  Carpenters  and  Joiners  of  America 
is  a  voluntaiy  association  and  trade  union  of  cari:)enters  whose  mem- 
bers consist  of  so-called  '  outside  carpenters  '  who  work  on  buildings, 
and  '  inside  carpenters,'  who  work  in  mills. 

"7.  That  the  members  have  adopted  rules  antedating  any  strikes 
against  plaintiff's  material,  by  which  outside  members  are  not  to 
work  on  mill  products  not  made  in  mills  manned  by  their  inside 
members. 

"8.  That  said  rules  were  not  adopted  with  the  plaintiff  in  view, 
but  were  intended  to  apply  generally  to  the  products  of  all  non- 
union mills. 

"  10.  The  non-union  mills,  including  that  of  the  plaintiff,  compete 
in  their  products  with  the  mills  manned  hij  the  members  oj  said  United 
Brotherhood.  .  .   . 

"17.  ^riiat  it  confhu'o.s  to  tiie  Ix'ttcrnunit  of  tli(^  condition  of  the 
members  of  said  l^'nited  Brotherhood  not  to  install  the  mill  products 
of  plaintiff  in  buildings.  .  .  . 


SECT.  II]  SECONDARY   BOYCOTT  437 

"  19.  That  it  would  tend  to  increase  the  sale  of  union  mill  pro<lu<t.s 
made  by  the  inside  carpenters,  members  of  the  United  Brotherhood 
and  80  secure  them  in  work  and  inerea.se  the  chances  of  outside 
members  to  obtain  work  in  union  mills,  for  the  outside  memljcrs  to 
refuse  to  handle  the  non-union  mill  products  of  the  plaint ifT.  .  .  . 

"24.  Therci  was  no  vio'ence,  nor  any  threat  of  violence,  <jn  the 
part  of  the  defendants  in  connection  with  any  of  the  acts  complained  of. 

"2').  That  no  threat,  coercion  or  intimidation  was  u.sed  by  any 
of  these  defendants  to  induce  the  union  carpenters  to  fjuit  work 
where  strikes  aj^ainst  plaint ilT's  material  occurred,  except  the  en- 
forcement of  the  bj'-laws.  .  .  . 

"32.  The  primary  motive  and  purpose  the  defendants  had  in 
view  in  all  the  matters  complained  of  regardless  of  whether  their 
acts  would  be  in  furtherance  of  sucli  motive  and  purpose  —  or  not 
—  were  to  benefit  their  fellow-members  in  said  l)rotherhood  by  pro- 
curing them  work  and  helping  the  sale  of  the  union-mad(.'  mill  prod- 
ucts of  their  fellow-members  in  mills. 

"35.  The  defendants  have  refused  to  install  the  mill  products  of 
other  non-union  mills  than  that  of  the  plaintitT. 

"43.  That  to  compel  the  members  of  said  United  Brotherhood 
to  work  on  the  mill  products  of  the  plaintiff  limits  the  sale  of  the 
union  mill  products  made  by  its  members,  and,  to  that  extent  tends 
to  throw  them  out  of  work. 

"44.  That  generally  the  union  rate  of  wages  is  higher  and  the 
hours  of  work  shorter  per  day  than  in  non-union  mills. 

"46.  That  the  union  rate  of  wages  and  hours  tends  to  a  higher 
and  better  standard  of  living  tlian  the  non-union  rates  and  hours. 

"49.  That  the  hours  of  labor  in  plaint itfs  mill  are  more  than  eight 
hours  per  day."  .  .  . 

In  considering  this  finding  of  the  court  we  must  keep  in  mind  the 
fact  that  the  action  of  the  Brotherhood  did  not  interfere  with  any 
contract  between  employer  and  employee.  Its  action  was  open  and 
clearly  defined  and  its  enforcement  was  not  designed  to  and  did  not 
include  any  force,  fraud,  threat  or  defamation.  Its  action  was  vol- 
untary and  concerned  labor  competition  in  which  the  association 
and  its  members  are  vitally  interested. 

The  voluntary  adoption  by  an  association  of  employees  of  reason- 
able rules  relating  to  persons  for  whom  and  conditions  under  wiiich 
its  membei-s  shall  work  is  not  illegal  at  common  law.  (National  Pro- 
tective Association  v.  Cumming,  170  X.  Y.  315;  Macauley  Brothers  r. 
Tierney,  19  H.  I.  255;  Bohn  Manufacturing  Co.  r.  Hollis.  54  Minn. 
223;  J.  F.  Parkinson  Co.  /•.  Building  Trades  Council,  154  Cal.  5S1; 
Martin,  Modern  Law  of  Labor  Unions,  109;  (Jill  Engraving  Co.  i\ 
Doerr,  214  Fed.  Rep.  Ill;  State  v.  Van  Pelt,  130  X.  C.  633;  Ruling 
Case  Law,  vol.  10,  450.) 

Neither  is  the  enforcement  of  such  rules  l)y  the  association  through 
fines  or   by  expulsion   from   the  association   illegal.      >reinbers  are 


438  BOYCOTTS  [CHAP,  VII 

thus  simply  required  to  obey  rules  of  the  association  so  long  as 
they  remain  members  thereof.  (Bohn  Manufacturing  Co.  v.  Hollis, 
supra.)  .  .  . 

Notwithstanding  the  quoted  and  other  conclusions  of  law  found 
by  the  court  in  this  case  which  would  seem  to  preclude  a  judgment 
in  favor  of  the  plaintiffs  the  court  found  as  follows: 

''That  the  combination  of  the  defendants  to  prevent  the  sale, 
use  and  installation  of  the  plaintiff's  wood  materials  by  causing  all 
union  carpenters  to  refuse  to  handle  said  materials  or  work  upon  any 
building  where  said  materials  were  being  used,  is  illegal. 

"That  the  combination  of  the  defendants,  as  set  forth  in  the 
findings  of  fact,  constitutes  an  illegal  conspiracy. 

"That  the  combination  of  the  defendants,  as  set  forth  in  the  find- 
ings of  fact,  and  the  acts  in  furtherance  thereof,  constitutes  an  illegal 
conspiracy  to  injure  the  plaintiff  contrary  to  common  law,"  .  .  . 

We  do  not  think  that  the  conclusion  of  the  court  is  sustained  by 
the  findings  of  fact  in  the  case.  A  judgment  was,  however,  entered, 
the  "affii'mative  provisions  of  which  are  quoted  herewith,  preceding 
the  opinion.  The  first  paragraph  thereof  adjudges  that  the  defend- 
ants shall  not  send  to  any  customer  or  prospective  customer  of  the 
plaintiffs  any  letter,  circular  or  communication,  printed,  written 
or  oral,  which  in  terms  or  by  inference  suggests  that  labor  troubles 
will  follow  the  use  of  materials  purchased  from  plaintiffs  or  from 
any  person,  firm  or  corporation  declared  unfair  or  whose  material 
does  not  bear  the  union  label.  Upon  all  the  findings  before  us  it 
is  clear  that  the  "labor  troubles"  therein  referred  to,  sunpl}^  mean 
that  if  non-union  made  materials  are  used  the  members  of  the  Brother- 
hood will  refuse  to  install  the  same. 

The  second  paragraph  thereof  adjudges  that  the  defendants  shall 
not  direct,  require  or  compel  any  person  by  by-law,  rule  or  regula- 
tion or  any  act  thereunder  to  cease  working  for  another  because  they 
use  material  purchased  from  non-union  shops.  And  the  third  para- 
graph thereof  enjoins  the  defendants  from  inducing  any  workmen 
in  their  trades  to  quit  work  on  any  building  because  non-union  car- 
penters are  there  employed  to  install  material  which  comes  from 
non-union  shops.  All  of  the  acts  enjoined  are  under  the  findings 
of  fact  in  this  case  lawful  acts  done  for  lawful  pin-poses. 

We  think  that  the  rules  laid  down  by  this  court  in  the  National 
Protective  Association  case  require  a  reversal  of  the  judgment  in 
favor  of  the  plaintifi"s  upon  the  findings  before  us.  When  it  is  deter- 
mined that  a  labor  organization  can  control  the  body  of  its  mem- 
bers for  the  purpose  of  securing  to  them  higluM"  wages,  shorter  hours 
of  labor  and  better  relations  with  their  employers,  and  as  a  part  of 
such  control  may  refuse  to  allow  its  members  to  work  under  con- 
ditions unfavoraV)le  to  it,  or  with  workingmen  not  in  accord  with 
the  sentiments  of  the  labor  union,  the  right  to  refuse  to  allow  them 
to  install  nf)n-union  made  material  follows  as  a  matter  of  course, 


SECT.  II]  SECONDARY   BOYCOTT  439 

subject  to  there  l)einK  no  iiuilicc,  fraud,  violence,  coercion,  intimida- 
tion or  defamation  in  carrying  out  their  re.s(jluti(jn.s  and  orders. 

Voluntary  orders  by  a  labor  organization  for  the  benefit  of  its 
members  and  tiie  enforcement  thereof  within  the  orj^anization  is 
not  coercion.  The  members  of  tiie  organizati(jn  as  we  have  already 
stated  who  are  not  willing  to  obey  the  orders  of  the  organization 
are  at  lil)erty  to  withdraw  therefrom.  The  bounds  beyond  which 
an  a.ssociation  of  employees  may  not  as  a  general  rule  go  in  eon- 
trolling  its  members  in  their  dealings  with  employers  are  not  easily 
determined.  They  cannot  at  least  extend  beyond  a  point  where  its 
or  their  direct  interests  cease.  There  is  a  material  difference  in  the 
powder  of  an  association  so  far  as  its  affects  its  primary  or  secontlary 
interest.  Where  the  acts  of  an  employee  or  employees  in  tlieir  in- 
dividual or  associate  capacity  arc  reasonaljly  and  directly  calcu- 
lated to  advance  lawful  objects,  they  should  not  be  restrained  by 
injunction. 

A  strike  or  boycott  may  l)e  legal  or  illegal  according  to  the  acts 
involved  therein  (Gray  i'.  Building  Trades  Council,  91  Minn.  171; 
State  V.  Van  Pelt,  supra;  Gill  Engraving  Co.  v.  Doerr,  214  Fed. 
Rep.  Ill;  IMills  v.  U.  S.  Printing  Co.,  99  App.  Div.  005;  affd.,  199 
N.  Y.  76.  See  also,  opinion  of  Andrews,  J.,  in  Seubert,  Inc.,  r. 
Reiff,  98  Misc.  Rep.  402),  so  an  action  for  a  direct  and  primary  pur- 
pose in  the  interest  of  individuals  or  a  combination  of  individuals 
taken  in  good  faith  to  advance  the  interest  of  the  individuals  or 
combination  may  be  lawful,  while  a  remote  and  secondary  action 
which  carries  with  it  a  degree  of  malice  as  a  matter  of  law  is  illegal. 
In  the  case  now  Ix'fore  us  if  the  defendants  liad  called  upon  the  pul)lic 
generally  to  discontinue  using  the  plaintiffs'  material  and  had  sought 
to  prevent  all  persons  by  communications,  written  or  otherwise, 
from  dealing  with  the  plaintiffs,  their  acts  would  have  been  illegal. 

It  does  not  appear  from  the  recortl  that  the  defendants  in  any 
way  interfered  with  the  trade  or  l)usiness  of  the  plaintiffs,  except 
that  the  members  of  the  Brotherhood  were  by  their  voluntary  ac- 
tion recjuired  to  decline  using  material  made  in  non-union  shops  and 
announcement  was  made  of  such  intention  that  the  same  might  be 
known  l)y  contractors  in  advance  of  the  contracts  to  be  entered 
into  in  connection  with  the  erection  of  the  work.  Such  action  of 
the  defendants  did  not  extend  beyond  such  refusal  to  install  non- 
union made  material  and  so  far  as  it  amounted  to  either  a  strike 
or  a  boycott,  it  directly  affecte(l  the  Brotherhood  and  its  members.  .  .  . 

The  judgment  of  the  Appellate  Division  should  l)e  reversed  and 
the  complaint  dismis.sed,  with  costs  in  all  courts. 

Collin,  Hog.\x,  Cakdozo,  Pound,  and  Andrkws,  .1,).,  cnnrur; 
Crane,  J.,  takes  no  part. 

Jutlgment  reversed,  etc' 

»  Accord:  Gill  Engraving  Co.  i;.  Doerr,  214  Fed.  Ill;  Parkin.son  v.  Building 
Trades  Council,  154  Cal.  581,  supra,  p.  150;   State  v.  Van  Pelt,  136  N.  C.  633; 


440 


BOYCOTTS 


[CHAP.  VII 


LOEWE  V.  LAWLOR 
Supreme  Court  of  the  United  States.     1908 
208  U.  S.  274 
See  supra,  page  121,  for  a  report  of  the  case. 


i:^'' 


DUPLEX  PRINTING  PRESS  CO.  v.  DEERING 

Supreme  Court  of  the  United  States.     1921 

254  U.  S.  443 

Mr.  Justice  Pitney  delivered  the  opinion  of  the  court. 

This  was  a  suit  in  equity  brought  by  appellant  in  the  District 
Court  for  the  Southern  District  of  New  York  for  an  injunction  to 
restrain  a  course  of  conduct  carried  on  by  defendants  in  that  Dis- 
trict and  vicinity  in  maintaining  a  boycott  against  the  products  of 
complainant's  factory,  in  furtherance  of  a  conspiracy  to  injure  and 
destroy  its  good  will,  trade,  and  business  —  especially  to  obstruct 
and  destroy  its  interstate  trade.  There  was  also  a  prayer  for  dam- 
ages, but  this  has  not  been  pressed  and  calls  for  no  further  mention. 
Complainant  is  a  Michigan  corporation  and  manufactures  print- 
ing presses  at  a  factory  in  Battle  Creek,  in  that  State,  employing 
about  200  machinists  in  the  factory  in  addition  to  50  office  employees, 
traveling  salesmen,  and  expert  machinists  or  road  men  who  super- 
vise the  erection  of  the  presses  for  complainant's  customers  at  their 
various  places  of  business.  The  defendants  who  were  brought  into 
court  and  answered  the  bill  are  Emil  J.  Deering  and  William  Bram- 
ley,  sued  individually  and  as  business  agents  and  representatives 
of  District  No.  15  of  the  International  Association  of  Machinists, 
and  Michael  T.  Neyland,  sued  individually  and  as  business  agent 
and  representative  of  Local  Lodge  No.  328  of  the  same  association. 
The  District  Council  and  the  Lodge  are  unincorporated  associations 
having  headquarters  in  New  York  City,  with  numerous  members 
resident  in  that  city  and  vicinity.  There  were  averments  and  proof 
to  show  that  it  was  impracticable  to  bring  all  the  members  before 
the  court  and  that  the  named  defendants  properly  represented  them; 
and  those  named  were  called  upon  to  defend  for  all,  pursuant  to 
Equity  Rule  38  (226  U.  S.  659).     Other  jurisdictional  averments 

Searle  Mfg.  Co.  v.  Terry,  106  N.  Y.  Supp.  438;  Grant  Construction  Co.  v.  Bldg. 
Trades  Council,  136  Minn.  167  (semble);  Reardon  v.  Caton,  189  App.  Div.  (N. 
Y.1501  (semhle);   Buyer  v.  Guillan,  03  N.  Y.  L.  J.  1625  (semble). 

Contra:  Irving  v.  Dist.  Council,  180  Fed.  896;  Shine  v.  Fox  Bros.  Mfg.  Co., 
156  Ved.  357;  Burnham  v.  Dowd,  217  Ma?s.  351;  Lohse  Patent  Door  Co.  v. 
Fuelle,  215  Mo.  421;  Moores  v.  Bricklayers'  Union,  10  Ohio  Dec.  Reprint,  665; 
Purvis  V.  Local  No.  500,  214  Pa.  St.  348. 

See  also.  Duplex  Printing  Press  Co.  j;.  Deering,  254  U.  S.  443,  480-483.  Com- 
pare Paine  Lumber  Co.  v.  Ncal,  244  U.  S.  459,  471. 

Compare  the  subsequent  New  York  case  of  Auburn  Draying  Co.  v.  Wardwell, 
227  N.  Y.  1  (1919). 


SECT.  II]  SECONDARY   BOYCOTT  441 

need  no  particular  mention.  The  District  Court,  on  final  hcuriiiK, 
dismissed  tlie  bill,  247  Fed.  Hep.  192;  the  Circuit  Court  of  Api)eaLi 
affirmed  its  decree,  252  Fed.  Hep.  722;  and  the  present  api)eal  was 
taken. 

The  juris(H('tion  of  the  federal  ((Hut  was  invoked  both  Ijv  rea- 
son of  chver.se  citizenship  and  on  tlie  K'oimd  that  defendants  were 
en^aKcd  in  a  conspiracy  to  restrain  complainant's  interstate  trade 
and  commerce  in  printing  presses,  contrary  to  the  Shennan  Anti- 
Trust  Act  of  July  2,  1K90,  e.  047,  20  Stat.  209.  The  suit  was  begun 
before  but  brought  to  iiearing  after  the  pas.sage  of  the  Chiyton  Act 
of  October  15,  1914,  c.  323,  3S  Stat.  730.  Both  parties  invoked  the 
provisions  of  the  latter  act,  and  both  courts  treated  them  as  appli- 
cal)le.  Comphiinant  relied  also  upon  the  common  law;  but  we  shall 
deal  first  with  the  effect  of  the  acts  of  Congress. 

The  facts  of  the  ca.se  and  the  nature  of  the  relief  prayed  are  suffi- 
ciently set  forth  in  the  report  of  the  decision  of  the  Circuit  Court 
of  Appeals,  252  Fed.  Rep.  722.  .  .  .  Complainant  conducts  its 
business  on  the  "open  shop''  policy,  without  discrimination  against 
cither  union  or  non-union  men.  The  individual  defendants  and  the 
local  organizations  of  which  they  are  the  representatives  are  affiliated 
with  the  International  Association  of  Machinists,  an  unincorporated 
association  having  a  membership  of  more  than  60,000;  and  are 
united  in  a  combination,  to  which  the  International  Association 
also  is  a  party,  having  the  object  of  compelling  complainant  to 
unionize  its  factor}-  and  enforce  the  "closed  shop,"  the  eight-hour 
day,  and  the  union  scale  of  wages,  by  means  of  interfering  with  and 
restraining  its  interstate  trade  in  the  products  of  the  factory.  Com- 
plainant's principal  manufacture  is  newspaper  presses  of  large  size 
and  complicated  mechanism,  varying  in  weight  from  10,000  to  100,000 
pounds,  and  requiring  a  considerable  force  of  labor  and  a  consider- 
able expenditure  of  time  —  a  week  or  more  —  to  handle,  haul  and 
erect  them  at  the  point  of  delivery.  These  presses  are  sold  through- 
out the  United  States  and  in  foreign  countries;  and,  as  they  are 
especially  designed  for  the  production  of  daily  papers,  there  is  a 
large  market  for  them  in  and  al)out  the  City  of  New  York.  They 
are  delivered  there  in  the  ordinary  course  of  interstate  commerce, 
the  handling,  hauling  and  installation  work  at  destination  being 
done  by  employees  of  the  purchaser  under  the  supervision  of  a  spe- 
cially skilled  machinist  supplied  by  complainant.  The  acts  com- 
plained of  and  .sought  to  be  restrained  have  nothing  to  do  with  the 
conduct  or  management  of  the  factory  in  Michigan,  Imt  solely  with 
the  installation  and  operation  of  the  presses  by  complainant's  cus- 
tomers. None  of  the  defendants  is  or  ever  was  an  employee  of  com- 
plainant, and  complainant  at  no  time  has  had  relations  with  either 
of  the  organizations  that  they  represent.  In  August,  1913  (eight 
months  before  the  filing  of  the  bill),  the  International  Association 
called  a  strike  at  complainant's  factory  in  Rattle  Creek,  as  a  result 


442  BOYCOTTS  [CHAP.  VII 

of  which  union  machinists  to  the  number  of  about  eleven  in  the  fac- 
tory and  three  who  supervised  the  erection  of  presses  in  the  field 
left  complainant's  employ.  But  the  defection  of  so  small  a  number 
did  not  materiall}'  interfere  with  the  operation  of  the  factory,  and 
sales  and  shipments  in  interstate  commerce  continued.  The  acts 
complained  of  made  up  the  details  of  an  elaborate  programme  adopted 
and  carried  out  by  defendants  and  their  organizations  in  and  about 
the  City  of  New  York  as  part  of  a  country-wide  programme  adopted 
by  the  International  Association,  for  the  purpose  of  enforcing  a 
boycott  of  complainant's  product.  The  acts  embraced  the  follow- 
ing, with  others:  warning  customers  that  it  would  be  better  for 
them  not  to  purchase,  or  having  purchased  not  to  install,  presses 
made  by  complainant,  and  threatening  them  with  loss  should  they  do 
so;  threatening  customers  with  sympathetic  strikes  in  other  trades; 
notifying  a  trucking  company  usually  employed  by  customers  to 
haul  the  presses  not  to  do  so,  and  threatening  it  with  trouble  if  it 
should;  inciting  employees  of  the  trucking  company,  and  other 
men  employed  by  customers  of  complainant,  to  strike  against  their 
respective  employers  in  order  to  interfere  with  the  hauling  and  in- 
stallation of  presses,  and  thus  bring  pressure  to  bear  upon  the  cus- 
tomers; notifying  repair  shops  not  to  do  repair  work  on  Duplex 
presses;  coercing  union  men  by  threatening  them  with  loss  of  union 
cards  and  with  being  blacklisted  as  "scabs"  if  they  assisted  in  in- 
stalling the  presses;  threatening  an  exposition  company  with  a 
strike  if  it  permitted  complainant's  presses  to  be  exhibited;  and 
resorting  to  a  variety  of  other  modes  of  preventing  the  sale  of  presses 
of  complainant's  manufacture  in  or  about  New  York  City,  and 
delivery  of  them  in  interstate  coimnerce,  such  as  injuring  and  threat- 
ening to  injure  complainant's  customers  and  prospective  customers, 
and  persons  concerned  in  hauling,  handling,  or  installing  the  presses. 
In  some  cases  the  threats  were  undisguised,  in  other  cases  polite  in 
form  but  none  the  less  sinister  in  purpose  and  effect.  All  the  judges 
of  the  Circuit  Court  of  Appeals  concurred  in  the  view  that  defend- 
ants' conduct  consisted  essentially  of  efforts  to  render  it  impossible 
for  complainant  to  carry  on  an}^  commerce  in  printing  presses  be- 
tween Michigan  and  New  York;  and  that  defendants  had  agreed 
to  do  and  were  endeavoring  to  accomplish  the  very  thing  pronounced 
unlawful  by  this  Court  in  Loewe  v.  Lawlor,  208  U.  S.  274;  235  U.  S. 
522.  The  judges  also  agreed  that  the  interference  with  interstate 
commerce  was  such  as  ought  to  bo  enjoined,  unless  the  Clayton 
Act  of  October  15,  1914,  forbade  such  injunction. 

That  act  was  passed  after  the  beginning  of  the  suit  but  more  than 
two  years  before  it  was  brought  to  hearing.  We  are  clear  that  the 
courts  below  wore  riglit  in  giving  effect  to  it;  the  real  question  being, 
whether  they  gave  it  the  proper  effect.  In  so  far  as  the  act  (a)  pro- 
vided for  relief  by  injunction  to  private  suitors,  (b)  imposed  con- 
ditions upon  granting  such  relief  under  particular  circumstances, 


SECT.  II]  SECONDARY    BOYCOTT  443 

and  (f)  otherwise  modified  tiie  Sheniuin  Act,  it  wa.s  efTeetive  from 
the  time  of  its  passage,  and  apphcahle  to  pending  suite  f<jr  injunc- 
tion. Obviously,  this  form  of  rehef  o[)erates  only  in  futuru,  and  tlie 
right  to  it  must  be  determined  as  of  tlie  time  of  the  hearing.  .  .  . 

That  comphiinant's  business  of  manufacturing  printing  presides 
and  (hsposing  of  them  in  commerce  is  a  property  right,  entitled  to 
protection  against  unlawful  injury'  or  interference;  that  unrestrained 
access  to  the  channels  of  interstate  conunerce  is  necessary  for  the 
successful  conduct  of  the  business;  that  a  widespread  comV)ination 
exists,  to  which  defendants  and  the  associations  represented  by 
them  are  parties,  to  hinder  and  oi)struct  complainant's  interstate 
trade  and  conunerce  by  the  means  that  have  been  indicated;  and 
that  as  a  result  of  it  complainant  has  sustained  substantial  damage 
to  its  interstate  trade,  antl  is  threatened  with  further  and  irreparal^Ie 
loss  and  damage  in  the  future;  is  proved  b\'  clear  and  undisputed 
evidence.  Hence  the  right  to  an  injunction  is  clear  if  the  threat- 
ened loss  is  due  to  a  violation  of  the  Sherman  Act  as  amende  1  by 
the  Clayton  Act. 

Looking  first  to  the  former  act,  the  thing  declared  illegal  by  its 
first  section  (20  Stat.  209)  is  "Every  contract,  combination  in  the 
form  of  trust  or  otherwise,  or  conspiracy,  in  restraint  of  trade  or 
commerce  among  the  several  States,  or  with  foreign  nations."  .  .  . 

The  substance  of  the  matters  here  complained  of  is  an  interfer- 
ence with  complainant's  interstate  trade,  intended  to  have  coercive 
effect  upon  complainant,  and  jM'oduced  by  what  is  commonly  known 
as  a  "secondary  boycott,"  that  is,  a  combination  not  merely  to 
refrain  from  dealing  with  complainant,  or  to  advise  or  by  peaceful 
means  persuade  complainant's  customers  to  refrain  ("prunary  l>oy- 
cott"),  but  to  exercise  coercive  pressure  upon  such  customers,  actual 
or  prospective,  in  order  to  cause  them  to  withhold  or  withdraw 
patronage  from  complainant  through  fear  of  loss  or  damage  to  them- 
selves should  they  deal  with  it. 

As  we  shall  .see,  the  recognized  distinction  between  a  primary 
and  a  secondary  boycott  is  material  to  be  considered  upon  the  (jues- 
tion  of  the  proper  construction  of  the  Clayton  Act.  But,  in  deter- 
mining the  right  to  an  injunction  under  that  and  the  Sherman  Act, 
it  is  of  minor  consequence  whether  either  kind  of  Ixncott  is  lawful 
or  unlawful  at  common  law  or  under  the  statutes  of  particular  States. 
Those  acts,  passed  in  the  exercise  of  the  power  of  Congress  to  regu- 
late commerce  among  the  States,  are  of  paramount  authority,  and 
their  prohibitions  must  be  given  full  effect  irrespective  of  whether 
the  things  prohibited  are  lawful  or  unlawful  at  connnon  law  or  un- 
der local  statutes. 

[The  ct)urt  here  enters  upon  a  discussion  of  Loewe  /-.  Lawlor,  208 
U.  S.  274,  sujira,  p.  121 ;  Lawlor  v.  Loewe,  235  U.  S.  522,  infra,  p.  466; 
and  Eastern  States  Retail  Lumber  Dealers'  Assn.  v.  United  States, 
234  U.  S.  ()(H).] 


444  BOYCOTTS  [CHAP.  VII 

It  is  settled  by  these  decisions  that  such  a  restraint  produced  by 
peaceable  persuasion  is  as  much  within  the  prohibition  as  one  ac- 
complished by  force  or  threats  of  force;  and  it  is  not  to  be  justified 
by  the  fact  that  the  participants  in  the  combination  or  conspiracy 
may  have  some  object  beneficial  to  themselves  or  their  associates 
which  possibly  they  might  have  been  at  hberty  to  pursue  in  the 
absence  of  the  statute. 

Upon  the  question  whether  the  provisions  of  the  Clayton  Act 
forbade  the  grant  of  an  injunction  under  the  circumstances  of  the 
present  case,  the  Circuit  Court  of  Appeals  was  divided;  the  ma- 
jority holding  that  under  sec.  20,  ''perhaps  in  conjunction  with  sec. 
6,"  there  could  be  no  injunction.  These  sections  are  set  forth  in  the 
margin.^  Defendants  seek  to  derive  from  them  some  authority  for 
their  conduct.  As  to  sec.  6,  it  seems  to  us  its  principal  miportance 
in  this  discussion  is  for  what  it  does  not  authorize,  and  for  the  limit 
it  sets  to  the  immunit}'  conferred.  The  section  assumes  the  normal 
objects  of  a  labor  organization  to  be  legitimate,  and  declares  that 
nothing  in  the  anti-trust  laws  shall  be  construed  to  forbid  the  exist- 
ence and  operation  of  such  organizations  or  to  forbid  their  members 
from  lawfully  carrying  out  their  legitimate  objects;  and  that  such 
an  organization  shall  not  be  held  in  itself  —  merely  because  of  its 
existence  and  operation  —  to  be  an  illegal  combination  or  con- 
spiracy in  restraint  of  trade.  But  there  is  nothing  in  the  section  to 
exempt  such  an  organization  or  its  members  from  accountability 
where  it  or  they  depart  from  its  normal  and  legitimate  objects  and 
engage  in  an  actual  combination  or  conspiracy  in  restraint  of  trade. 
And  by  no  fair  or  permissible  construction  can  it  be  taken  as  au- 
thorizing any  activity  otherwise  unlawful,  or  enabling  a  normally 
lawful  organization  to  become  a  cloak  for  an  illegal  combination  or 
conspiracy  in  restraint  of  trade  as  defined  by  the  anti-trust  laws. 

The  principal  reliance  is  upon  sec.  20.  .  .  .  All  its  provisions 
are  subject  to  a  general  qualification  respecting  the  nature  of  the 
controversy  and  the  parties  affected.  It  is  to  be  a  "case  between 
an  employer  and  employees,  or  between  employers  and  employees, 
or  between  employees,  or  between  persons  employed  and  persons 
seeking  employment,  involving,  or  growing  out  of,  a  dispute  con- 
cerning terms  or  conditions  of  emplojaiient." 

The  first  paragraph  merely  puts  into  statutory  form  familiar 
restrictions  upon  the  granting  of  injunctions  already  established 
and  of  general  application  in  the  equity  practice  of  the  courts  of  the 
United  States.  It  is  but  declaratory  of  the  law  as  it  stood  before. 
The  second  paragraph  declares  tiiat  "no  such  restraining  order  or 
injunction"  shall  prohil^it  certain  conduct  specified  —  manifestly 
still  referring  to  a  "case  between  an  employer  and  employees,  .  .  . 
involving,  or  growing  out  of,  a  dispute  concerning  terms  or  con- 
ditions of  emplo^^ment,"  as  designated  in  the  first  paragraph.     It 

1  For  the  text  of  sees.  G  and  20  of  the  Clayton  Act,  see  supra,  p.  145.  —  Ed. 


SECT.  II]  SECONDARY   BOYCOTT  445 

is  very  doar  that  the  restriction  upon  the  use  of  the  injunction  Is  in 
favor  only  of  those  concerned  as  parties  to  such  a  dispute  as  is  de- 
scribed. The  words  defining  the  permitted  conduct  include  partic- 
ular fjualifications  consistent  with  the  general  one  respecting  the 
nature  of  the  case  and  dispute  intended;  and  the  concluding  words, 
"nor  sliall  any  of  the  acts  specified  in  this  paragraph  be  considered 
or  hekl  to  be  violations  of  any  law  of  the  United  States,"  are  to  be 
read  in  the  light  of  the  context,  and  mean  only  that  those  acts  are 
not  to  be  so  held  when  committed  by  parties  concerned  in  "a  dis- 
pute concerning  terms  or  conditions  of  employment."  If  the  fjualify- 
ing  words  are  to  have  any  efTect,  they  must  operate  to  confine  the 
restriction  upon  the  granting  of  injunctions,  and  also  the  relaxation 
of  the  provisions  of  the  anti-trust  and  other  laws  of  the  United 
States,  to  parties  standing  in  proximate  relaticm  to  a  controversy 
such  as  is  particularly  descril)ed. 

The  majority  of  the  Circuit  Court  of  Appeals  appear  to  have 
entertained  the  view  that  the  words  "employers  and  employees," 
as  used  in  sec.  20,  should  be  treated  as  referring  to  "the  business 
class  or  clan  to  which  the  parties  litigant  respectively  l^elong";  and 
that,  as  there  had  been  a  dispute  at  complainant's  factory  in  Mich- 
igan concerning  the  conditions  of  employment  there  —  a  dispute 
created,  it  is  said,  if  it  did  not  exist  before,  by  the  act  of  the  Ma- 
chinists' Union  in  calling  a  strike  at  the  factory  —  sec.  20  operated 
to  permit  members  of  the  Machinists'  Union  elsewhere  —  some 
60,000  in  number  —  although  standing  in  no  relation  of  employ- 
ment under  complainant,  past,  present,  or  prospective,  to  make 
that  dispute  their  own  and  proceed  to  instigate  sympathetic  strikes, 
picketing,  and  l)oycotting  against  employers  wholly  unconnected 
with  complainant's  factory  and  having  relations  with  comi)lainant 
only  in  the  way  of  purchasing  its  product  in  the  ordinary  course  of 
interstate  commerce  —  and  this  where  there  was  no  dispute  between 
such  employers  and  their  employees  respecting  terms  or  conditions 
of  employment. 

We  deem  this  construction  altogether  inadmissible.  .  .  .  Full 
and  fair  efTect  will  be  given  to  ever^^  wortl  if  the  exceptional  privilege 
be  confined  —  as  the  natural  meaning  of  the  words  confines  it  — 
to  those  who  are  proximately  and  substantially  concerned  as  parties 
to  an  actual  dispute  respecting  the  terms  or  conditions  of  their  own 
employment,  past,  present,  or  prospective.  The  extensive  construc- 
tion adopted  by  the  majority  of  the  court  below  virtually  ignores 
the  elToct  of  the  qualifying  words.  Congress  had  in  mind  particular 
industrial  controversies,  not  a  general  class  war.  "Terms  or  con- 
ditions of  employment"  are  the  onl}-  grounds  of  dispute  recognized 
as  adequate  to  bring  into  play  the  exemptions;  and  it  would  do 
viol(>nce  to  the  guani(>d  language  employed  were  the  exemption  ex- 
tended beyond  tiie  parties  atT(>cted  in  a  proximate  and  substantial,  not 
merely  a  sentimental  or  sympathetic,  sense  by  the  cause  of  dispute. 


446  BOYCOTTS  [CHAP.  VII 

Xor  can  sec.  20  be  regarded  as  bringing  in  all  members  of  a  labor 
organization  as  parties  to  a  "dispute  concerning  terms  or  condi- 
tions of  emplojanent"  which  proximately'  affects  only  a  few  of  them, 
with  the  result  of  conferring  upon  any  and  all  members  —  no  mat- 
ter how  many  thousands  there  may  be,  nor  how  remote  from  the 
actual  conflict  —  those  exemptions  which  Congress  in  terms  con- 
ferred only  upon  parties  to  the  dispute.  That  would  enlarge  by 
construction  the  provisions  of  sec.  20,  which  contain  no  mention  of 
labor  organizations,  so  as  to  produce  an  inconsistency  with  sec.  6, 
which  deals  specifically  with  the  subject  and  must  be  deemed  to 
express  the  measure  and  limit  of  the  immunity  intended  by  Congress 
to  be  incident  to  mere  membership  in  such  an  organization.  At 
the  same  time  it  would  virtualh'  repeal  by  implication  the  prohibi- 
tion of  the  Sherman  Act,  so  far  as  labor  organizations  are  concerned, 
notwithstanding  repeals  by  implication  are  not  favored;  and  in 
effect,  as  was  noted  in  Loewe  v.  Lawlor,  208  U.  S.  274,  303-304, 
would  confer  upon  voluntary  associations  of  individuals  formed 
within  the  States  a  control  over  commerce  among  the  States  that  is 
denied  to  the  governments  of  the  States  themselves. 

The  qualifying  effect  of  the  words  descriptive  of  the  nature  of 
the  dispute  and  the  parties  concerned  is  further  borne  out  bj^  the 
phrases  defining  the  conduct  that  is  not  to  be  subjected  to  injunction 
or  treated  as  a  violation  of  the  laws  of  the  United  States,  that  is  to 
say:  (a)  "terminating  any  relation  of  emploj'ment,  ...  or  per- 
suading others  by  peaceful  and  lawful  means  so  to  do";  (6)  "attend- 
ing at  any  place  where  any  such  person  or  persons  may  lawfully  be, 
for  the  purpose  of  peacefully  obtaining  or  communicating  informa- 
tion, or  from  peacefully  persuading  any  person  to  work  or  to  abstain 
from  working";  (c)  "ceasing  to  patronize  or  to  employ  any  party 
to  such  dispute,  or  .  .  .  recommending,  advising,  or  persuading 
others  by  peaceful  and  lawful  means  so  to  do";  {d)  "paying  or  giving 
to,  or  withholding  from,  any  person  engaged  in  such  dispute,  any 
strike  benefits  .  .  .";  {e)  "doing  any  act  or  thing  which  might  law- 
fully be  done  in  the  absence  of  such  dispute  by  any  party  thereto." 
The  emphasis  placed  on  the  words  "lawful"  and  "lawfully,"  "peace- 
ful" and  "peacefully,"  and  the  references  to  the  dispute  and  the 
parties  to  it,  strongly  rebut  a  legislative  intent  to  confer  a  general 
immunity  for  conduct  violative  of  the  anti-trust  laws,  or  otherwise 
unlawful.  The  subject  of  the  boycott  is  dealt  with  specifically  in 
tlie  "ceasing  to  patronize"  provision,  and  bj^  the  clear  force  of  the 
language  employed  the  exemption  is  limited  to  pressure  exerted 
upon  a  "party  to  such  dispute"  by  means  of  "peaceful  and  law- 
fuV  influence  upon  neutrals.  There  is  nothing  here  to  justify  de- 
fendants or  the  organizations  they  represent  in  using  cither  threats 
or  persuasion  to  bring  about  strikes  or  a  cessation  of  work  on  the 
part  of  employees  of  complainant's  customers  or  prospective  cus- 
tomers, or  of  the  trucking  company  employed  by  the  customers, 


SECT.  II]  SECONDARY   BOYCOTT  447 

vvitli  the  object  of  compelling  such  customers  to  witlulraw  or  re- 
frain from  commercial  relations  with  complainant,  and  of  thereby 
constraining  complainant  to  yield  the  matter  in  dispute.  To  in- 
stigate a  sympatlu'tic  strike  in  aitl  of  a  secondary  l>oycott  cannot 
be  deemed  "peaceful  and  lawful"  persuasion.  In  essence  it  is  a 
threat  to  inflict  damage  upon  the  immediate  employer,  between 
whom  and  his  employees  no  dispute  exists,  in  order  to  bring  him 
against  his  will  into  a  concerted  plan  to  inflict  damage  upon  another 
employer  who  is  in  dispute  with  his  emphnees. 

The  majority  of  the  Circuit  Court  of  Appeals,  very  properly 
treating  the  case  as  involving  a  secondary  boycott,  ba.sed  the  decision 
upon  the  \lv\v  that  it  was  the  [)urpo.se  of  sec.  20  to  legalize  the  second- 
ary boycott  "at  least  in  so  far  as  it  rests  on,  or  consists  of,  refusing 
to  work  for  any  one  who  deals  with  the  principal  ofTender."  Char- 
acterizing the  section  as  "blindly  drawn,"  and  conceding  that  the 
meaning  attributed  to  it  was  broad,  the  court  referred  to  the  legis- 
lative history  of  the  enactment  as  a  warrant  for  the  construction 
adopted.    Let  us  consider  this.'  .  .  . 

Reaching  the  conclusion,  as  we  do,  that  complainant  has  a  clear 
right  to  an  injunction  under  the  Sherman  Act  as  amended  by  the 
Clayton  Act,  it  becomes  unnecessary'  to  consider  whether  a  like 
result  would  follow  under  the  common  law  or  local  statutes;  there 
being  no  suggestion  that  relief  thereunder  could  be  broader  than 
that  to  which  complainant  is  entitled  under  the  acts  of  Congress. 

There  should  be  an  injunction  against  defendants  and  the  asso- 
ciations represented  by  them,  and  all  members  of  those  a.ssociations, 
restraining  them,  according  to  the  prayer  of  the  bill,  from  interfering 
or  attempting  to  interfere  with  the  sale,  transportation,  or  delivery 
in  interstate  commerce  of  any  printing  press  or  presses  manufactured 
by  complainant,  or  the  transportation,  carting,  installation,  use, 
operation,  exhibition,  display,  or  repairing  of  an}'  such  pre.ss  or 
presses,  or  the  performance  of  anj'  contract  or  contracts  made  by 
complainant  respecting  the  sale,  transportation,  delivery,  or  in- 
stallation of  any  such  press  or  presses,  by  causing  or  threatening  to 
cause  loss,  damage,  troul)lc,  or  inconvenience  to  any  person,  firm, 
or  corporation  concerned  in  the  purchase,  transportation,  carting, 
installation,  use,  operation,  exhibition,  display,  or  repairing  of  any 
such  press  or  presses,  or  the  performance  of  any  such  contract  or 
contracts;  and  also  and  especially  from  using  any  force,  threats, 
conunand,  direction,  or  even  persuasion  with  the  object  or  having 
the  effect  of  causing  any  person  or  persons  to  decline  employment, 
cease  employment,  or  not  seek  employment,  or  to  refrain  from  work 
or  cease  working  umlcr  any  person,  firm,  or  corporation  being  a  pur- 
chaser or  prospective  purchaser  of  an\'  printing  press  or  presses  from 

'  The  covirt  here  enters  into  a  consideration  of  the  legishitive  history  of  the 
enactment,  and  comes  to  the  conchision  that  the  purpose  of  the  enactment  was 
not  to  legalize  the  secondary  boycott.  —  Ed. 


448  BOYCOTTS  [CHAP.  VII 

complainant,  or  engaged  in  hauling,  carting,  delivering,  installing, 
handling,  using,  operating,  or  repairing  any  such  press  or  presses 
for  any  customer  of  complainant.  Other  threatened  conduct  by 
defendants  or  the  associations  they  represent,  or  the  members  of 
such  associations,  in  furtherance  of  the  secondary  boycott  should 
be  included  in  the  injunction  according  to  the  proofs. 

Complainant  is  entitled  to  its  costs  in  this  court  and  in  both  courts 
below. 

Decree  reversed,  and  the  cause  remanded  to  the  District  Court  for 
further  proceedings  in  conformity  with  this  opinion. 

Mr.  Justice  Brandeis,  dissenting,  with  whom  Mr.  Justice 
Holmes  and  Mr.  Justice  Clafke  concur. 

The  Duplex  Co.,  a  manufacturer  of  newspaper  printing  presses, 
seeks  to  enjoin  officials  of  the  machinists'  and  affiliated  unions  from 
interfering  with  its  business  by  inducing  their  members  not  to  work 
for  plaintiff  or  its  customers  in  connection  with  the  setting  up  of 
presses  made  by  it.  Unlike  Hitchman  Coal  &  Coke  Co.  v.  INIitchell, 
245  U.  S.  229,  there  is  here  no  charge  that  defendants  are  inducing 
employees  to  break  their  contracts.  Nor  is  it  now  urged  that  de- 
fendants threaten  acts  of  violence.  But  plaintiff  insists  that  the 
acts  complained  of  violate  both  the  common  law  of  New  York  and 
the  Sherman  Act  and  that,  accordingly,  it  is  entitled  to  relief  by  in- 
junction under  the  state  law  and  under  sec.  16  of  the  Clayton  Act, 
October  15,  1914,  c.  323,  38  Stat.  730,  737. 

The  defendants  admit  interference  with  plaintiff's  business  but 
justify  on  the  following  ground:  There  are  in  the  United  States 
only  four  manufacturers  of  such  presses;  and  they  are  in  active 
competition.  Between  1909  and  1913  the  machinists'  union  induced 
three  of  them  to  recognize  and  deal  with  the  union,  to  grant  the 
eight-hour  day,  to  establish  a  minimum  wage  scale  and  to  comply 
with  other  union  requirements.  The  fourth,  the  Duplex  Co.,  re- 
fused to  recognize  the  union;  insisted  upon  conducting  its  factory 
on  the  open  shop  principle;  refused  to  introduce  the  eight-hour  day 
and  operated  for  the  most  part,  ten  hours  a  day;  refused  to  establish 
a  minimum  wage  scale;  and  disregarded  other  union  standards. 
Thereupon  two  of  the  three  manufacturers  who  had  assented  to 
union  conditions,  notified  the  union  that  they  should  be  obliged  to 
terminate  their  agreements  with  it  unless  their  competitor,  the 
Duplex  Co.,  also  entered  into  the  agreement  with  the  union,  which, 
in  giving  more  favorable  terms  to  labor,  imposed  correspondingly 
greater  V)urdens  upon  the  employer.  Because  the  Duplex  Co.  re- 
fused to  enter  into  such  an  agreement  and  in  order  to  induce  it  to  do 
so,  the  machinists'  union  declared  a  strike  at  its  factory,  and  in  aid 
of  that  strike  instructed  its  members  and  the  members  of  affiliated 
unions  not  to  work  on  the  installation  of  presses  which  plaintiff  had 
delivered  in  New  York.    Defendants  insist  that  l)y  the  common  law 


SECT.  II]  SECONDARY   BOYCOTT  449 

of  New  York,  where  the  acts  coiiipluined  (jf  were  done,  and  where 
this  suit  was  brought,  and  also  by  sec.  20  of  the  Clayton  Act,  38 
Stat.  730,  738,  the  facts  constitute  a  justification  for  this  interference 
with  plaintiff's  business. 

First.  As  to  tlic  rij^hts  at  coiiiiiioii  hr.\  :  Defendants'  justifica- 
tion is  that  of  self-interest.  They  have  supi)orted  the  strike  at  the 
employer's  factory  by  a  strike  elsewhere  agaiiLst  its  product.  They 
have  injured  the  plaintiff,  not  maliciously,  but  in  self-defen.se  They 
contend  that  the  Duplex  Co.'s  refusal  to  deal  with  the  machinists' 
union  and  to  observe  its  standards  threatened  the  interest  not  only 
of  such  union  members  as  were  its  factory  employees,  but  even  more 
of  all  members  of  the  several  affiliated  unions  emi)loyefl  by  plain- 
tiff's competitors  and  by  others  whose  more  advanced  standards 
the  plaintiff  was,  in  realit}',  attacking;  and  that  none  of  the  de- 
fendants and  no  person  whom  they  are  endeavoring  to  induce  to 
refrain  from  working  in  connection  with  the  setting  up  of  presses 
made  by  plaintiff  is  an  outsider,  an  interloper.  In  other  words, 
that  the  contest  between  the  company  and  the  machinists'  union 
involves  vitally  the  interest  of  every  person  who.se  cooperation  is 
sought.  ]\Iay  not  all  with  a  common  interest  join  in  refusing  to 
expend  their  labor  upon  articles  whose  very  production  constitutes 
an  attack  upon  their  standard  of  living  and  the  institution  which 
they  are  convinced  supports  it?  Applying  common-law  principles 
the  answer  shoukl,  in  my  opinion,  be:  Yes,  if  as  matter  of  fact  those 
who  so  cooperate  have  a  common  interest. 

The  change  in  the  law  by  which  strikes  once  illegal  and  even 
criminal  are  now  recognized  as  lawful  was  effected  in  America  largely 
without  the  intervention  of  legislation.  This  reversal  of  a  common- 
law  rule  was  not  due  to  the  rejection  by  the  courts  of  one  principle 
and  the  adoption  in  its  stead  of  another,  but  to  a  better  realization 
of  the  facts  of  industrial  life.  It  is  conceded  that,  although  the 
strike  of  the  workmen  in  plaintiff's  factory  injured  its  business,  the 
strike  was  not  an  actionable  wrong;  because  the  obvious  self-interest 
of  the  strikers  constituted  a  justification.  See  Pickett  r.  Walsh,  192 
Mass.  572.  Formerly  courts  held  that  self-interest  could  not  be  so 
served.  Commons,  History  of  Labor  in  the  United  States,  vol.  2, 
c.  5.  But  even  after  strikes  to  raise  wages  or  reduce  hours  were  held 
to  be  legal  because  of  the  self-interest,  some  courts  held  that  there 
was  not  sufficient  causal  relationship  between  a  strike  to  unionize 
a  shop  and  the  self-interest  of  the  strikers  to  justify  injuries  infiicted. 
Plant  V.  Woods,  170  Ma.><s.  492;  Lucke  v.  Clothing  Cutters'  A.-^.<;embly, 
77  Md.  390;  Erdman  /•.  Mitchell,  207  Pa.  St.  79.  But  other  courts, 
repeating  the  same  legal  formula,  found  that  there  was  justification, 
because  they  viewed  the  facts  differently.  National  Protective 
Association  r.  Camming,  170  N.  Y.  31o:  Kemp  r.  Division  No.  241, 
255  111.  213;  Roddy  r  United  Mine  Workers.  41  Okla.  021.  When 
centralization  in  the  control  of  business  l»rought  its  corresponding 


450  BOYCOTTS  [CHAP.  VII 

centralization  in  the  organization  of  workingmen,  new  facts  had  to 
be  appraised.  A  single  employer  might,  as  in  this  case,  threaten 
the  standing  of  the  whole  organization  and  the  standards  of  all  its 
members;  and  when  he  did  so  the  union,  in  order  to  protect  itself, 
would  naturally  refuse  to  work  on  his  materials  wherever  found. 
"VVTien  such  a  situation  was  first  presented  to  the  courts,  judges  con- 
cluded that  the  intervention  of  the  purchaser  of  the  materials  estab- 
lished an  insulation  through  which  the  direct  relationship  of  the 
emplo3'er  and  the  workingmen  did  not  penetrate;  and  the  strike 
against  the  material  was  considered  a  strike  against  the  purchaser 
by  unaffected  third  parties.  Burnham  v.  Dowd,  217  IVIass.  351; 
Purvis  V.  United  Brotherhood,  214  Pa.  St.  348;  Booth  i'.  Burgess, 
72  N.  J.  Eq.  181.  But  other  courts,  with  better  appreciation  of 
the  facts  of  industry,  recognized  the  unity  of  interest  throughout 
the  union,  and  that,  in  refusing  to  work  on  materials  which  threat- 
ened it,  the  union  was  only  refusing  to  aid  in  destroying  itself.  Bos- 
sert  V.  Dhuy,  221  N.  Y.  342;  Cohn  &  Roth  Electric  Co.  v.  Brick- 
layers' Union,  92  Conn.  161;  Gill  Engraving  Co.  v.  Doerr,  214  Fed. 
Rep.  Ill;  State  v.  Van  Pelt,  136  N.  C.  633;  Grant  Construction 
Co.  V.  St.  Paul  Building  Trades  Council,  136  Minn.  167;  Pierce  v. 
Stablemen's  Union,  156  Cal.  70,  76. 

So,  in  the  case  at  bar,  deciding  a  question  of  fact  upon  the  evi- 
dence introduced  and  matters  of  common  knowledge,  I  should  say, 
as  the  two  lower  courts  apparently  have  said,  that  the  defendants 
and  those  from  whom  they  sought  cooperation  have  a  common  in- 
terest which  the  plaintiff  threatened.  This  view  is  in  harmony  with 
the  views  of  the  Court  of  Appeals  of  New  York.  For  in  New  York, 
although  boycotts  like  that  in  Loewe  v.  Lawlor,  208  U.  S.  274,  are 
illegal  because  they  are  conducted  not  against  a  product  but  against 
those  who  deal  in  it  and  are  carried  out  by  a  combination  of  persons 
not  united  by  common  interest  but  only  by  sympathy,  Auburn  Dray- 
ing  Co.  V.  Wardell,  227  N.  Y.  1,  it  is  lawful  for  all  members  of  a  union 
by  whomever  employed  to  refuse  to  handle  materials  whose  produc- 
tion weakens  the  union.  Bosscrt  v.  Dhuy,  supra;  P.  Reardon,  Inc., 
V.  Caton,  189  App.  Div.  501;  compare  Paine  Lumber  Co.  v.  Neal, 
244  U.  S.  459,  471.  "The  voluntary  adoption  of  a  rule  not  to  work 
on  non-union  made  material  and  its  enforcement  differs  only  in 
degree  from  such  voluntary  rule  and  its  enforcement  in  a  partic.'ular 
case.  Such  a  determination  also  differs  entirely  from  a  general  boy- 
cott of  a  particular  dealer  or  manufacturer  with  a  malicious  intent 
and  purpose  to  destroy  the  good  will  or  business  of  such  dealer  or 
manufacturer."  Bossert  v.  Dhuy,  221  N.  Y.  342,  355.  In  my  opin- 
ion, therefore,  plaintiff  had  no  cause  of  action  by  the  common  law  of 
New  York. 

Second.  As  to  the  anti-trust  laws  of  the  United  States:  Sec.  20, 
of  the  Clayton  Act,  declares,  — 


SECT.  II]  SECONDARY   BOYCOTT  451 

"Nor  shall  any  of  the  acts  specified  in  this  paragraph  he  con- 
sidered or  held  to  be  violations  of  any  hiNV  of  the  United  .States." 

The  acts  which  are  thus  referred  to  are,  whether  i)erforrned  singly 
or  in  concert,  —  "Terminating  any  relation  of  employment,  or  .  .  . 
ceasing  to  perform  any  work  or  lahor,  or  .  .  .  recommentling, 
advising,  or  persuading  others  by  peaceful  means  so  to  do;  or  .  .  . 
attending  at  any  place  where  any  such  person  or  persons  may  law- 
fully be,  for  the  purpose  of  i)eacefully  ol)taining  or  communicating 
information,  or  .  .  .  pcacf^fully  persuading  any  person  to  work  or 
to  al»stain  from  working;  or  .  .  .  ceasing  t(j  patnjni/e  or  to  employ 
any  party  to  such  disi)ute,  or  .  .  .  reconunending,  advi.sing,  or  per- 
suading others  by  peaceful  and  lawful  means  so  to  do;  or  .  .  . 
paying  or  giving  to,  or  withholding  from,  any  person  engaged  in 
such  dispute,  any  strik(>  benefits  or  other  moneys  or  things  of  \':due: 
or  .  .  .  peaceably  assembling  in  a  lawful  manner,  and  for  lawful 
purposes;  or  .  .  .  doing  any  act  or  thing  which  might  lawfully  be 
done  in  the  absence  of  such  dispute  by  any  party  thereto." 

This  statute  was  the  fruit  of  unceasing  agitation,  which  extended 
over  more  than  twenty  years  antl  was  designed  to  etiualize  before 
the  law  the  position  of  workingmen  and  employer  as  industrial  com- 
batants. Aside  from  the  use  of  the  injunction,  the  chief  source  of 
dis.satisfaction  with  the  existing  law  lay  in  the  doctrine  of  malicious 
comliination,^  and,  in  many  parts  of  the  country,  in  the  judicial 
declarations  of  the  illegality  at  common  law  of  picketing  and  per- 
suading others  to  leave  work.  The  grounds  for  objection  to  the 
latter  are  obvious.  The  objection  to  the  doctrine  of  malicious  com- 
binations requires  some  explanation.  By  \irtue  of  that  doctrine, 
damage  resulting  from  conduct  such  as  striking  or  withholding 
patronage  or  persuading  others  to  do  either,  which  without  more 
might  be  damnum  nhscjiie  injuria  because  the  result  of  trade  com- 
petition, became  actionable  when  done  for  a  purpose  which  a  judge 
considered  socially  or  economically  harmful  and  therefore  branded 
as  mahcious  and  unlawful.  It  was  objected  that,  due  largely  to 
environment,  the  social  and  economic  ideas  of  judges,  which  thus 
became  translated  into  law,  were  prejudicial  to  a  position  of  equality 
between  workingman  and  employer;  that  due  to  this  dependence 
upon  the  individual  opinion  of  judges  great  confusion  existed  as  to 

'  See  ''Malice  and  Unlawful  Interference,"  Ernest  Freund,  11  Harv.  L.  Rev. 
449,  4G1;  "Rights  of  Traders  and  Laborer.^^,"  Edward  F.  McClennen,  10  Harv. 
L.  Rev.  237,  244;  "  Crucial  Issues  in  Lal)or  Litigation,"  Jeremiah  Smith.  20 
Harv.  L.  Rev.  429,  4.")1;  Principles  of  Labor  Lcf^islation,  Commons  and  .Vndrews, 
pp.  95-110;  Hoxie,  Trade  Unionism  in  the  United  States,  p.  231;  (Jroat,  .Atti- 
tude of  .Xmerican  Courts  Towards  Labor  Ca.«es,  pp.  70-77;  221;  240;  J.  W.  Bryan, 
The  Development  of  the  Engli.sh  Law  of  Cons|)iracy,  p.  147  et  seq. 

Report  of  the  Industrial  Commission,  l'.M)l,  vol.  17,  p.  cxiv,  pp.  515,  556; 
Report  of  Royal  Conuni.ssion  on  Trade  Disputes  and  Trade  Combinations, 
1900,  p.  12;   Report  of  Conuni.ssion  on  Industrial  Relations,  1915.  p.  135;   p.  377. 

For  attemj)ts  to  reach  this  doctrine  by  legislation  .see  also,  52d  Cong.,  11.  R. 
6040,  sec.  1;  50th  Cong.,  II.  R.  110t')7,  sec.  7;   57th  Cong.,  S.  649,  sec.  7. 


452  BOYCOTTS  [CHAP.  VII 

what  purposes  were  lawful  and  what  unla\\^ul ;  and  that  in  any  event 
Congress,  not  the  judges,  was  the  body  which  should  declare  what 
public  policy  in  regard  to  the  industrial  struggle  demands. 

By  1914  the  ideas  of  the  advocates  of  legislation  had  fairly  crystal- 
hzed  upon  the  manner  in  which  the  inequality  and  uncertainty  of 
the  law  should  be  removed.  It  was  to  be  done  by  expressly  legalizing 
certain  acts  regardless  of  the  effects  produced  by  them  upon  other 
persons.  As  to  them  Congress  was  to  extract  the  element  of  injuria 
from  the  damages  thereby  inflicted,  instead  of  leaving  judges  to 
determine  according  to  their  own  economic  and  social  views  whether 
the  damage  inflicted  on  an  employer  in  an  industrial  struggle  was 
damnum  absque  injuria,  because  an  incident  of  trade  competition, 
or  a  legal  injury,  because  in  their  opinion,  economically  and  socially 
objectionable.  This  idea  was  presented  to  the  committees  which 
reported  the  Clayton  Act.  The  resulting  law  set  out  certain  acts 
which  had  previously  been  held  unlawful,  whenever  courts  had  dis- 
approved of  the  ends  for  which  they  were  performed;  it  then  declared 
that,  when  these  acts  were  committed  in  the  course  of  an  industrial 
dispute,  they  should  not  be  held  to  violate  any  law  of  the  United 
States.  In  other  words  the  Clayton  Act  substituted  the  opinion 
of  Congress  as  to  the  propriety  of  the  purpose  for  that  of  differing 
judges;  and  thereby  it  declared  that  the  relations  between  employers 
of  labor  and  workingmen  were  competitive  relations,  that  organized 
competition  was  not  harmful  and  that  it  justified  injuries  necessarily 
inflicted  in  its  course.  Both  the  majority  and  the  minority  report 
of  the  House  Committee  indicate  that  such  was  its  purpose.  If, 
therefore,  the  act  applies  to  the  case  at  bar,  the  acts  here  complained 
of  cannot  "be  considered  or  held  to  be  violations  of  any  law  of  the 
United  States,"  and,  hence,  do  not  violate  the  Sherman  Act. 

The  Duplex  Co.  contends  that  sec.  20  of  the  Clayton  Act  does 
not  apply  to  the  case  at  bar,  because  it  is  restricted  to  cases  ''be- 
tween an  employer  and  employees,  or  between  employers  and  em- 
ployees, or  between  employees,  or  between  persons  employed  and 
persons  seeking  employment,  involving,  or  growing  out  of,  a  dispute 
concerning  terms  or  conditions  of  employment";  whereas  the  case 
at  bar  arises  between  an  employer  in  Michigan  and  workingmen 
in  New  York  not  in  its  employ,  and  does  not  involve  their  conditions 
of  employment.  But  Congress  did  not  restrict  the  provision  to  em- 
ployers and  workingmen  in  their  employ.  By  including  "employers 
and  employees"  and  "persons  employed  and  persons  seeking  em- 
ployment" it  showed  that  it  was  not  aiming  merely  at  a  legal  re- 
lationship between  a  specific  employer  and  his  employees.  Further- 
more, the  plaintiff's  contention  proves  too  much.  If  the  words  are 
to  receive  a  strict  technical  construction,  the  statute  will  have  no 
application  to  disputes  between  employers  of  labor  and  workingmen, 
since  the  very  acts  to  which  it  applies  sever  the  continuity  of  the  legal 
relationship.    Iron  Molders'  Union  v.  Allis-Chalmers  Co.,  166  Fed. 


SECT.  Ill]  NON-COERCIVE    BOYCOTT  453 

Rep.  45,  52-53;  Louisville,  Evansville  &  St.  Louis  R.  R.  Co.  i'.  Wilson, 
138  U.  S.  501,  505;  cf.  Rex  v.  Neilson,  44  X.  8.  48S,  49L  The  further 
contention  that  this  case  is  not  one  arising  out  of  a  dispute  concern- 
ing tlie  conditicjns  (jf  work  of  one  of  tlie  parties  is,  in  my  opinion, 
founded  upon  a  misconception  of  the  factij.'   .  .  . 


Section  3.     Boycott  by  Means  of  Notice  or  Non-coercive 
Persuasion.     The  "  Uiifair  List" 

NICHOL  I'.  MARTYN 
Nisi  Prius.     1799 

2  Esinnasse,  732 

This  was  a  special  action  on  the  Case,  against  the  Defendant,  for 
seducing  the  Pluintiff's  customers. 

The  Plaintiffs  were  wholesale  ironmongers,  who  carried  on  a  very 
extensive  business;  the  Defendant  had  ijeen  employed  by  them  as 
their  rider  or  traveller,  to  get  orders  in  the  course  of  their  business; 
and  the  foundation  of  the  action  was,  That  the  Defendant,  who  at 
the  time  of  bringing  the  action  was  in  the  same  hne  of  business  with 
the  Plaintiffs,  had,  during  the  time  that  he  was  in  their  employment, 
entleavoured  to  seduce  the  several  country  shoi)keepers  who  were  in 
the  habit  of  dealing  with  the  Plaintiffs,  to  leave  off  dealing  with 
them,  and  to  transfer  their  business  to  the  Defendant. 

To  prove  the  Plaintiff's  case,  they  called  some  of  those  country 
shopkeepers.  Their  evidence  proved  that  the  Defendant  on  his  last 
coming  to  their  shops  as  rider  to  the  Plaintiffs,  and  on  their  business, 
had  told  them  that  he  was  himself  going  into  the  same  business  with 
the  Plaintiffs  after  Christmas,  and  would  then  be  obliged  to  them  for 
an  order  on  his  own  account. 

It  appeared,  however,  on  the  cross  examination  of  those  witnesses, 
that  he  took  the  orders  regularly  for  the  Plaintiffs  on  that  journey, 
and  that  they  were  executed  on  the  Plaintiff's  account;  and  that 
no  solicitation  was  used  by  the  Defendant  for  any  order  at  that 
time,  which  migiit  have  been  supplied  by  the  Plaintiffs. 

It  was  also  admitted,  that  in  fact,  the  time  of  tiie  Defendant's 
engagement  to  serve  the  Plaintiffs,  expired  at  the  beginning  of  the 
year;  so  that,  in  truth,  in  the  month  of  March  he  woukl  have  been 
completely  his  own  master. 

'  That  the  Clayton  Act  docs  not  prevent  federal  courts  from  enjoining  in- 
timidation or  violence,  .sec  Kinloch  Telephone  Co.  r.  Union  No.  2,  265  Fed.  312 
(compare  275  Fed.  241);  Dail  Overland  Co.  r.  Willys-Overland,  2G3  Fed.  171, 
185  (compare  274  Fed.  50). 

See  also,  as  to  the  Clayton  .Act,  Lamar  r.  I'nited  States,  260  Fed.  561;  Mont- 
gomery t'.  Pacific  El.  Hy.Co.,  258  Fed.  39S;  United  States  r.  Norris,  225  Fed.  423; 
Kroger  Co.  v.  Retail  Clerks'  Assn.,  250  Fed.  890;  United  States  v.  King,  250  F«;d. 
908. 


454  BOYCOTTS  [CHAP.  VII 

Lord  Kenyon,  Chief  Justice.  The  conduct  of  the  Defendant  in 
this  case,  may  perhaps  be  accounted  not  handsome;  but  I  cannot 
say  that  it  is  contrary  to  law.  The  relation  in  which  he  stood  to  the 
Plaintiffs,  as  their  servant,  imposed  on  him  a  duty  which  is  called 
of  imperfect  obligation,  but  not  such  as  can  enable  the  Plaintiffs  to 
maintain  an  action.  A  servant  while  engaged  in  the  service  of  his 
master,  has  no  right  to  do  any  act  which  may  injure  his  trade,  or 
undermine  his  business ;  but  every  one  has  a  right,  if  he  can,  to  better 
his  situation  in  the  world;  and  if  he  does  it  by  means  not  contrary 
to  law,  though  the  master  may  be  eventually  injured,  it  is  damnum 
ahs.  injuria.  There  is  nothing  morally  bad,  or  very  miproper  in  a 
servant,  who  has  it  in  contemplation  at  a  future  period  to  set  up 
for  himself,  to  endeavour  to  conciliate  the  regard  of  his  master's  cus- 
tomers, and  to  recommend  himself  to  them,  so  as  to  procure  some 
business  from  them  as  well  as  others.  In  the  present  case,  the  De- 
fendant did  not  solicit  the  present  orders  of  the  customers:  on  the 
contrary,  he  took  for  the  Plaintiffs  all  those  he  could  obtain:  his 
request  of  business  for  himself  was  prospective,  and  for  a  time  when 
the  relation  of  master  and  servant  between  him  and  the  Plaintiffs 
would  be  at  an  end. 

It  was  suggested  in  the  course  of  the  cause,  that  the  Defendant 
had  seduced  some  of  the  servants  of  the  Plaintiff  to  quit  their  service, 
and  to  enter  into  his  when  he  went  into  business. 

Upon  that  point  Lord  Kenyon  said.  That  seducing  a  servant,  and 
enticing  him  to  leave  his  master  while  the  master  by  the  contract 
had  a  right  to  his  services,  was  certainly  actionable:  but  that  to  in- 
duce a  servant  to  leave  his  master's  service  at  the  expiration  of  the 
time  for  which  the  servant  had  hired  himself,  although  the  servant 
had  no  intention  at  the  time  of  quitting  his  master's  service,  was  not 
the  subject  of  an  action. 

The  Plaintiffs  were  nonsuited.^ 


LINDSAY  &  CO.  V.  MONTANA  FEDERATION  OF  LABOR 

Supreme  Court  or  Montana.     1908 

37  Mont.  264 

Mr.  Justice  Holloway  delivered  the  opinion  of  the  court. 

This  action  was  commenced  by  Lindsay  <fe  Co.,  Limited,  a  domestic 
corporation,  having  its  princi[)al  office  or  place  of  ])usin(\'^s  at  Helena, 
with  Ijranch  ofhces  and  places  of  business  at  Billings  and  (Ireat  Falls, 
in  this  state,  and  engaged  in  conducting  the  business  of  wholesale 
fruit  and  produce  merchants  at  those  places,  against  the  Montana 
Federation  of  Labor,  the  Yellowstone  Trades  and  Labor  Assembly, 
Billings  Clerks'  Protective  Union,  certain  officers  of  these  associa- 

'  Compare  Citizens'  etc.  Co.  v.  Montgomery  Light  &  Water  Power  Co.,  171 
Fed.  553.    Compare  also  Bovven  v.  Matheson,  14  Allen,  499,  supra,  p.  297. 


SECT.  Ill]  NON-COERCIVE    BOYCOTT  455 

tions,  and  others  to  secure  un  injuiu-tion  restraining  the  defendants 
from  certain  acts  alleged  to  have  been  conuuitted  by  thetn  and  threat- 
ened to  he  continueil.  I'pon  th(f  verified  coiniilaint  a  ternjjorary 
injunction  was  issuetl.  The  defendants  above  named  a|)i)eared  by 
answer,  which  denies  the  allegations  of  the  complaint  material  to 
this  controversy,  and  upon  such  answer  and  oral  testimony  to  l)c 
offered  moved  the  court  to  dissolve  the  injunction.  After  a  hearing 
tlie  injunction  was  dissolved  as  to  defendants  Joy  and  Do<jdy,  and 
modifieil  by  striking  out  a  portion  of  one  sentence,  and,  with  the 
modifications  tlius  made,  the  motion  was  denied,  and  the  injunction 
continued  in  f(;rce  against  the  remaining  answering  defendants.  .  .  . 
From  the  ortler  refusing  to  dissolve  the  injunction  this  apfx-al  was 
taken. 

For  tlie  purpose  of  this  decision  the  allegations  of  the  comi)laint 
need  not  be  referred  to  at  length.  Wa  are  not  called  upon  to  deter- 
mine the  j)r(ipriety  of  issuing  the  injunction  in  the  first  instance. 
The  (luestion  for  our  decision  is:  Should  the  injunction  have  been 
continued  in  force  after  the  hearing  on  the  motion  to  di.ssolve  was 
had?  And  the  answer  to  this  must  depend  upon  the  facts  disclosed 
at  such  hearing.  Stripped  of  all  u.seless  veri)iage,  these  facts  ap- 
peared: That  some  time  prior  to  October,  1907,  Lindsay  ct  Co.  had 
been  declared  unfair  l)y  the  Miners'  Union  and  Trades  As.sembly  in 
Helena,  and  this  action  had  been  indorsed  by  the  Montana  Federa- 
tion of  Labor,  and  circulars  announcing  the  fact  had  been  sent  to 
labor  organizations  throughout  the  state.  On  October  25,  1907,  the 
Y{>llowstone  Trades  and  Labor  A.sseml)ly,  upon  information  received 
of  the  action  taken  in  Helena,  passed  a  resolution  which  declared 
Lindsay  &  Co.  unfair,  and  referred  the  matter  to  the  grievance  com- 
mittee of  that  organization  to  advise  the  public  of  the  action  taken. 
Acting  upon  the  authority  thus  given,  the  grievance  committee 
caused  to  be  pul)lish(Hl  and  circulated  among  the  business  houses 
and  elsewhere  in  Hillings  circulars,  of  which  the  following  is  a  copy: 

"UNFAIR. 

"All  laboring  men  and  those  in  sympathy  witii  organized  lalior 
are  requested  not  to  patronize  Lindsay  &  Co.,  who  arc  engaged  in 
the  wholesale  fruit  business,  also  distributers  for  cigars  and  vegetables 
of  all  kinds  in  Billings  and  vicinitj^  as  they  are  unfair.  We  urge  the 
retail  merchants,  laboring  men,  and  all  who  are  in  sympathy  with 
organized  lal»or  to  place  them.selves  in  position  to  patronize  friendly 
wholesalers.  We  further  desire  to  call  attention  to  the  fact  that 
Lindsay  &  Co.  arc  operating  peddling  wagons  throughout  this  city, 
and  we  ask  the  people  to  guard  against  patronizing  these  wagons. 
We  ask  this  for  your  own  protection  and  the  protection  of  organized 
labor. 

"[Signed]     YELLOWSTONE  TRADES  AXO   L.VBoli 
ASSEMBLY." 


456  BOYCOTTS  [CHAP.  VII 

That  immediately  after  the  adoption  of  the  resolution  and  the 
publication  of  this  circular  a  large  number  of  retail  dealers  in  Bill- 
ings, who  had  theretofore  purchased  goods  from  the  plaintiff  com- 
pany, ceased  to  do  business  with  the  concern,  with  the  result  that 
the  business  of  the  company  at  Billings  was  practically  paralyzed, 
and  great  financial  loss  resulted.  As  stated  bj'  the  witness  Vaughan 
for  plaintiff:  "We  have  lost  patronage  from  these  merchants  on 
account  of  being  unfair.  A  circular  printed  and  sent  around.  There 
is  no  other  cause."  Another  witness  for  the  plaintiff  testified  that 
at  a  meeting  of  the  Clerks'  Union  in  Bilhngs  early  in  November, 
1907,  the  defendant  Fairgrieve  made  the  statement  that  "the}'  had 
Lindsay  &  Co.  on  the  unfair  list,  and  they  had  him  where  they  wanted 
him,  and  he  beheved  it  was  a  good  thing  to  leave  him  there."  Fair- 
grieve  testified  that  he  did  not  remember  making  any  such  state- 
ment. However,  this  is  immaterial  to  a  consideration  of  the  matter 
before  us.  From  these  facts  we  are  to  determine  the  question:  Should 
the  injunction  have  been  dissolved?  It  is  to  be  observed  that  only 
two  acts  of  any  consequence  are  shown  to  have  been  committed  by 
the  defendants:  (1)  They  declared  Lindsay  &  Co.  unfair,  or,  in  the 
language  of  respondent,  boycotted  the  company;  and  (2)  they  pub- 
lished the  circular  set  forth  above,  that  is,  they  caused  it  to  be  printed 
and  circulated. 

The  injunction,  as  modified,  is  very  sweeping  in  its  terms,  and  in 
that  form  could  not  be  justified  by  any  possible  state  of  facts;  but 
assuming  that  it  was  continued  for  the  purpose  of  preventing  the 
continuance  in  force  of  the  boycott,  and  for  the  purpose  of  prevent- 
ing a  repetition  of  the  publication  of  the  circular  or  a  similar  one  — 
although  there  is  not  any  evidence  of  any  threat  or  purpose  on  the 
part  of  the  defendants  or  any  of  them  to  repeat  that  act  — we  may 
consider  the  question  presented  to  us  by  reference  to  these  two  prin- 
cipal acts  mentioned. 

L  Does  the  continuance  in  force  of  the  resolution  of  October  25, 
1907,  amount  to  such  an  invasion  of  plaintiff's  rights  as  will  warrant 
the  interposition  of  a  court  of  equity  by  injunction?  .  .  . 

Whatever  may  have  been  the  attitude  of  the  courts  and  legisla- 
tive bodies  in  this  country  toward  labor  organizations  in  the  past, 
it  is  sufficient  for  our  purpose  to  know  that  the  right  of  workingmen 
to  organize  for  the  improvement  of  their  industrial  condition  is  now 
generally  admitted.  The  great  diversity  of  opinions  among  the 
courts  has  arisen  over  a  consideration  of  the  question:  What  means 
may  trade  unions  employ  to  further  the  objects  of  their  organiza- 
tions? It  is  well  known  that  the  means  frequently  employed  are 
the  strike  and  the  boycott,  and,  as  an  incident  of  each,  picketing, 
the  use  of  placards  and  banners,  and  the  publication  of  circulars. 

It  is  insisted  by  the  respondent  company  that  the  defendants  or- 
ganized a  boycott  of  plaint  iff 's  Inisiness  \)y  agr(>eing  among  tiiem- 
. selves  and  with  other  members  of  organized  labor  to  withhold  their 


BECT.  Ill]  NON-COERCIVE    BOYCOTT  457 

patronage  from  the  plaintiff  company,  and  that  they  undertook  by 
coercion  to  compel  the  retail  dealers  of  Billings  and  others  to  like- 
wise withdraw  their  [)atr<;iuige;  that  the  resolution  of  October  25, 
1907,  was  intended  and  understo(jd  by  the  defendants  to  express  the 
object  of  their  preconcerted  design;  and  that  the  publication  of  the 
circular  was  for  the  purpose  of  intimidating  the  retail  dealers  and 
others.  We  think  it  may  fairly  be  said  to  have  been  shown  by  the 
evidence  that  ui)on  the  adoption  of  the  resolution  of  October  25th, 
and  upon  the  intelligenee  of  that  action  becoming  general  among 
the  union  men  there,  it  was  understood  among  those  men  that  they 
would  not  patronize  Lindsay  &  Co.  while  the  interdict  was  in  force, 
and  wouKl  not  patronize  anyone  who  did  patronize  that  comi)any, 
and  tiiat  they  expected  that  all  retailers  and  others  in  symi)athy 
with  their  organizations  would  cease  trading  with  the  plaintiff  com- 
pany. 

Whether  the  acts  done  by  the  defendants  constituted  a  boycott, 
of  course  depends  entirely  upon  the  definition  of  that  term  which 
may  be  adopted.  The  most  casual  observation  will  disclose  that 
scarcel}^  any  two  courts  treating  of  the  subject  formulate  the  same 
definition.  In  fact,  the  growth  and  development  of  the  country, 
the  influence  of  science  and  invention  on  the  mode  of  conducting 
business,  and  many  other  causes  have  combined  to  change  materialh' 
the  relation  of  employer  and  employee,  and,  as  consequent  upon  it, 
the  meaning  of  the  terms  employed  at  the  time  Captain  Boycott 
was  literally  sent  to  Coventry  by  the  tenants  of  Connemara.  We 
are  referred  by  respondent  to  three  definitions  of  the  term  given  in 
5  Cyc.  995,  as  follows:  "A  combination  of  many  to  cause  a  loss  to 
one  person  by  coercing  others,  against  their  will,  to  withdraw  from 
him  their  beneficial  business  intercourse,  through  threats  that,  unless 
others  do  so,  the  many  will  cause  similar  loss  to  them;  an  organized 
effort  to  exclude  a  person  from  business  relations  with  others  l)y 
persuasion,  intmiidation,  antl  other  acts  which  tend  to  violence, 
and  thereby  coerce  him,  through  fear  of  resulting  injury,  to  submit 
to  dictation  in  the  management  of  his  affairs;  a  combination  between 
persons  to  susjiend  or  discontinue  dealings  or  patronage  with  another 
person  or  persons  because  of  the  refusal  to  comply  with  a  request  of 
him  or  them."  If  we  adopt  any  one  of  these,  the  evidence  woukl 
fail  to  bring  the  acts  of  the  defendants  within  the  definition.  But 
we  prefer  a  l^roader  definition,  and  one  we  deem  more  consonant  with 
present-day  conditions.  We  are  of  the  opinion  that  the  evidence 
shows  that  these  defendants  inaugurated  a  boycott  on  Lindsay  & 
Co.,  and  that  it  was  still  in  effect  at  the  date  of  the  hearing.  We 
adopt  the  language  of  the  Supreme  Court  of  New  York  in  Mills  v. 
United  States  Printing  Co.,  99  App.  Div.  005,  91  X.  Y.  Supp.  1S5, 
in  which  the  court,  speaking  through  Justice  Jenks,  said:  "I  think 
that  the  verb  '  to  boycott  '  does  not  necessarily  signify  that  the  doers 
employ  violence,   iiitiniidation,   or  other  unlawful  coercive  means; 


458  BOYCOTTS  [CHAP.  VII 

but  that  it  may  be  correctly  used  in  the  sense  of  the  act  of  a  combina- 
tion, in  refusing  to  have  business  deahngs  with  another  until  he  re- 
moves or  ameliorates  conditions  which  are  deemed  inimical  to  the 
welfare  of  the  members  of  the  combination,  or  some  of  them,  or 
grants  concessions  which  are  deemed  to  make  for  that  purpose." 

In  Ulerj'^  v.  Chicago  Live  Stock  Exchange,  54  111.  App.  233,  it  is 
said:  "A  person,  with  or  without  reason,  may  refuse  to  trade  with 
another;  so  may  ten  or  fifty  persons  refuse.  An  individual  may  ad- 
vise his  neighbor  or  friend  not  to  trade  with  another  neighbor.  He 
may  even  command  when  the  command  amounts  only  to  earnest 
advice." 

But  what  is  there  unlawful  in  the  act  of  the  union  workingmen  of 
Billings  in  withdrawing  their  patronage  from  the  plaintiff?  Certainly 
it  cannot  be  said  that  Lindsay  &  Co.  had  a  property  right  in  the 
trade  of  any  particular  person.  In  this  country  patronage  depends 
upon  good  will,  and  we  do  not  think  that  it  will  be  contended  by 
anyone  that  it  was  wrongful  or  unlawful,  or  violated  any  right  of 
the  plaintiff  company,  for  au}^  particular  individual  in  Billings  to 
withdraw  his  patronage  from  Lindsay  &  Co.,  or  from  any  other  con- 
cern which  might  be  doing  business  with  that  company,  and  that, 
too,  without  regard  to  his  reason  for  doing  so.  But  there  can  be 
found  running  through  our  legal  literature  many  remarkable  state- 
ments that  an  act  perfectly  lawful  when  done  by  one  person  becomes 
by  some  sort  of  legerdemain  criminal  when  done  by  two  or  more 
persons  acting  in  concert,  and  this  upon  the  theory  that  the  con- 
certed action  amounts  to  a  conspiracy.  But  with  this  doctrine  we 
do  not  agree.  If  an  individual  is  clothed  with  a  right  when  acting 
alone,  he  does  not  lose  such  right  merely  by  acting  with  others,  each 
of  whom  is  clothed  with  the  same  right.  If  the  act  done  is  lawful, 
the  comljination  of  several  persons  to  commit  it  does  not  render  it 
unlawful.  In  other  words,  the  mere  combination  of  action  is  not  an 
clement  which  gives  character  to  the  act.  It  is  the  illegality  of  the 
purpose  to  be  accomplished,  or  the  illegal  means  used  in  furtherance 
of  the  purpose,  which  makes  the  act  illegal.  (18  Ency.  of  Law,  2d  ed., 
82;  Bohn  Mfg.  Co.  v.  Hollis,  54  Minn.  223,  40  Am.  St.  Rep.  319, 
55  N.  W.  119,  21  L.  R.  A.  337.)  .  .  .  Chief  Justice  Parker,  in 
speaking  for  the  Court  of  Appeals  in  National  Protective  Assn.  v. 
Cumming,  170  N.  Y.  315,  88  Am.  St.  Rep.  648,  63  N.  E.  369,  58 
L.  R.  A.  135,  said:  "Whatever  one  man  may  do  alone,  he  may  do 
in  combination  with  others,  provided  they  have  no  unlawful  object 
in  view.  Mere  numbers  do  not  ordinarily  affect  the  quality  of  the 
act." 

We  hold,  then,  that  a  labor  organization  may  employ  the  boycott 
as  herein  (k'fined  in  furtiiorance  of  the  objects  of  its  existence.  If, 
however,  the  means  by  which  it  enforces  the  boycott  are  illegal, 
then  it  may  render  its  members  amenable  to  the  processes  of  the 
law;   but,  if  they  are  not,  the  courts  are  powerless  to  render  assist- 


SECT.  IH]  NON-COERCIVE    BOYCOTT  459 

ance  to  the  person  or  firm  hoyccjtted,  even  though  financial  loss  results 
as  the  direct  consefiiience  of  the  boycott.  It  may  Ix*  true,  that, 
speaking  generally,  no  one  has  the  right  intentionally  to  do  an  act 
for  the  purpose  of  injuring  another's  business,  but  injury,  however, 
in  its  legal  significance,  means  damage  resulting  from  the  violaticjn 
of  a  legal  right  and  it  is  the  violation  of  the  legal  right  which  renders 
an  act  wrongful  in  the  eye  of  the  law  and  makes  it  actionable.  ( Ma- 
cauley  Bros.  v.  Tierney,  19  R.  I.  255.) 

If  then  these  defendants  and  their  a.ssoeiates  did  not  violate  ai.y 
legal  right  of  the  plaintiff  in  withdrawing  their  [)atronage  fn^m  the 
company  or  in  agiceing  to  withdraw  their  patronage  from  any  one 
who  might  patronize  Lindsay  &  Co.,  they  eannot  Ijc  enjoined  from 
continuing  the  boycott  in  force  so  long  as  the  means  employed  to 
make  the  boycott  efT(M-tive  are  not  illegal.  The  evidence  shows  that 
the  only  means  used  in  tiiis  instance  was  the  publication  of  the  cir- 
cular in  (juestion,  anil  this  brings  us  to  a  consideration  of  the  second 
proposition  involved. 

2.  (a)  May  a  court  of  equity  enjoin  the  publication  by  an  individ- 
ual of  a  circular  of  this  character?  (6)  If  not  may  it  enjoin  such 
publication  when  made  by  a  numl)er  of  individuals  acting  collectively? 

(a)  Article  III  of  our  Constitution  is  entitled:  "A  Declaration  of 
Rights  of  the  People  of  the  State  of  Montana,"  and  sec.  10  of  that 
Article,  so  far  as  applicable  here,  reads  as  follows:  "No  law  shall  be 
passed  impairing  tlie  freedom  of  speech;  every  person  shall  be  free 
to  speak,  write  or  pul)lish  whatever  he  will  on  any  subject,  being  re- 
sponsible for  all  abuse  of  that  lil)crty."  The  language  here  employed 
seems  too  clear  to  admit  of  doubt  or  argument.  .  .  .  The  language 
of  the  section  is  not  susceptible  of  any  other  meaning  than  this:  That 
the  individual  citizen  of  Montana  cannot  l)e  prevented  from  speak- 
ing, writing,  or  publishing  whatever  he  will  on  anj'  subject.  If, 
however,  what  he  writes  or  publishes  constitutes  a  criminal  libel, 
he  may  be  held  responsil)le  for  the  a])use  of  the  liberty  in  a  criminal 
prosecution  (Penal  Code,  Titk^  \TII,  Chapter  Mil),  or,  if  what  he 
speaks,  writes,  or  pulilishes  wrongfully  infringes  the  rights  of  others 
he  may  lie  held  responsible  for  the  abuse  in  a  civil  action  for  dam- 
ages. .  .  .  I'nder  similar  constitutional  provisions,  the  Supreme 
Courts  of  California  and  Missouri  have  reached  the  same  conclusion. 
(Dailey  r.  Superior  Court,  112  Cal.  94,  53  Am.  St.  Rep.  160,  44  Pac. 
45S,  32  L.  R.  A.  273,  Mar.x  &  Haas  Jeans  Clothing  Co.  r.  Watson, 
168  Mo.  133,  90  Am.  St.  Rep.  440,  67  S.  W.  391,  56  L.  R.  A.  951.) 

(h)  What  we  have  said  al)Ove,  in  the  first  paragraph  of  this  opinion, 
is  likewis(^  applicable  here.  If  any  one  of  these  individuals  could 
pul)lish  this  circular,  they  may  with  equal  security  all  join  in  its 
publication. 

We  think  the  evidence  produced  at  the  hearing  was  insufficient 
to  justify  the  continuance  in  force  of  the  injunction,  ami  it  shouhl 
have  been  dissolved. 


460  BOYCOTTS  [CHAP.  VII 

The  order  of  the  court  is  reversed,  and  the  cause  is  remanded,  with 
direction  to  vacate  the  order  heretofore  made  and  enter  an  order 
dissolving  the  injunction.  Reversed  and  remanded. 

]\Ir.  Chief  Justice  Brantly  and  Mr.  Justice  Smith  concur.^ 


SINSHEIMER  v.  UNITED  GARMENT  WORKERS 

Supreme  Court  of  New  York.     1894 

77  Hun,  215 

Appeal  by  the  defendants,  The  United  Garment  Workers  of 
America  and  others,  from  an  order  of  the  Supreme  Court,  made  at 
the  New  York  Special  Term  and  entered  in  the  office  of  the  clerk 
of  the  county  of  New  York  on  the  18th  day  of  November,  1893, 
granting  the  plaintiffs'  motion  for  a  preliminary  injunction. 

Van  Brunt,  P.  J.  .  .  .  The  main  facts  in  reference  to  which  there 
seems  to  be  sufficiency  of  legal  proof  are  that  the  plaintiffs  formed 
part  of  a  combination  of  clothing  manufacturers,  having  for  its  osten- 
sible object  protection  from  unjust  claims  upon  the  part  of  their 
operatives,  with  a  secret  purpose  to  break  down,  if  possible,  any 
organization  made  by  operatives  for  the  purpose  of  advancing  wages 
and  protecting  themselves  in  their  employment.  The  defendant 
upon  the  other  hand  is  a  combination  of  operatives  associated  to- 
gether for  the  purpose  of  protection  against  the  exactions  of  employers, 
the  advancement  of  their  wages,  and  the  compelling  of  employment 
of  only  those  persons  who  belong  to  their  association.  Naturally  the 
interests  and  purposes  of  these  two  associations  lead  to  contest  and 
strife.  I  know  of  no  law  which  prevents  combinations,  either  for  the 
assertion  of  rights  or  protection  against  wrongs,  as  long  as  the  acts  of 
such  associates  do  not  infringe  upon  the  provisions  of  law. 

Various  differences  had  arisen  between  the  plaintiffs  and  the 
defendants;  negotiations  were  had;  claims  of  bad  faith  upon  both 
sides  were  advanced;-  and  the  result  was  the  issuance  of  circulars  by 
the  defendants,  some  time  prior  to  the  commencement  of  this  action, 
to  tradesmen  in  other  cities,  complaining  of  their  treatment  by  the 
plaintiffs  and  others,  and  substantially  asking  that  they  discontinue 
trading  with  them  as  long  as  this  condition  of  affairs  existed.  And 
finally,  in  March,  1893,  the  clothing  manufacturers  adopted  a  reso- 
lution (claiming  bad  faith  upon  the  part  of  the  operatives  and  that 
a  strike  had  been  ordered  in  the  shop  of  one  of  the  members  of  the 
association)  that  unless  the  operatives  receded  from  their  position, 
all  persons  in  their  employ  belonging  to  the  association  of  operatives 
should  be  discharged.  .  .  . 

1  Accord:  Iverson  v.  Dilno,  44  Mont.  270  (display  of  l)anncr);  Empire  Theatre 
Co.  V.  Cloke,  53  Mont.  183  (display  of  banner).  Compare  Citizens'  Light,  Heat, 
&  Power  Co.  v.  Montgomery  Light  &  Water  Power  Co.,  171  Fed.  553,  557. 


SECT.  Ill]  NOX-COERCIVE    BOYCOTT  461 

1  fail  to  see  how  the  injuiuti(jn  in  this  action  can  be  sustained. 
There  is  no  proof  of  any  acts  of  violence  upon  the  part  of  the  defend- 
ants, or  of  any  injury  to  property,  or  of  any  threats  or  intin»ida- 
tion.  At  best  the  circuhirs  were  but  one  of  the  instruments  used  by 
the  defenchmts  in  their  contest  \yith  the  association  of  which  the 
plaintiffs  were  members.  It  was  a  pursuing  of  precisely  the  same 
course  against  the  Manufacturers  Associ;ition  as  the  Manufacturers 
Association  were  urging  against  them.  The  Manufacturers  Associa- 
tion claimed  the  right  that  their  members  should  discharge  from 
their  employ  all  persons  connected  with  the  defendants'  association 
unless  they  receded  from  certain  demands  made  upon  one  of  their 
members.  The  defentlants  notified  persons  engaged  in  the  trade  of 
the  controversies  which  were  existing,  and  virtually  requested  such 
persons  not  to  deal  with  the  plaintilTs'  firm  unless  such  differences 
could  be  adjusted.  I  fail  to  see  that  there  is  any  infringement  of 
any  provision  of  law  in  the  issuance  of  such  a  circular.  .  .  . 

It  seems  to  me  oln'ious  that  the  clothing  manufacturers  had  the 
right  to  lock  out  all  operatives  connected  with  the  defendants'  a.sso- 
ciation  because  of  demands  which  they  considered  unjust,  made 
by  the  defendants  upon  one  of  their  number,  and  that  the  defend- 
ants iiad  an  ecjual  right  to  endeavor  to  persuade  those  who  had  Ix'en 
accustomed  to  deal  with  members  of  the  ^Manufacturers  Associa- 
tion to  discontinue  their  trade. 

It  is  a  familiar  principle  in  equity  that  the  plaintiff  must  come 
into  court  with  clean  hands.  Under  the  circumstances  disclosed  by 
the  papers  in  this  case,  if  the  defendants  were  guilty  of  any  viola- 
tion of  law,  the  plaintiffs  were  certainly  equalh^  implicated,  and 
under  this  condition  of  affairs  it  is  difficult  to  see  how  thej'  would 
have  a  right  to  the  intervention  of  a  court  of  equity.  In  deahng 
with  questions  of  this  nature  the  court  should  be  studious  to  see 
that  the  rights  of  all  parties  are  protected;  and  that  the  forms  of 
law  should  not  be  permitted  to  be  used  on  behalf  of  one  party  against 
another,  when  the  party  seeking  the  intervention  of  the  court  has 
been  endeavoring  to  secure  his  ends  by  means  similar  to  those  which 
he  seeks  to  enjoin  on  the  part  of  his  antagonist. 

Upon  the  whole  case,  therefore,  I  am  of  the  opinion  that  the  in- 
junction should  not  have  been  granted,  and  the  order  appealed  from 
shoukl  be  reversed,  with  ten  dollars  costs  and  disbursements,  and 
the  motion  denied,  witii  ten  dollars  costs. 

FoLLETT,  J.,^  conc'urrcil.- 

*  O'Brien,  J.,  rendered  a  concurring  opinion.  —  Ed. 

«  Accord:  Heitkaiiipor  v.  Hoffman,  99  Misc.  543;  Butterick  Pub.  Co.  v.  Tvip. 
Union,  100  X.  Y.  Supp.  292. 

In  the  former  ca.'^e  the  court  said  (p.  5-tO):  "No  just  complaint  can  be  made 
by  the  phiintifT  against  the  union'.s  circularizing  the  neighborhood,  a.'sking  the 
friends  of  union  lal)or  not  to  patronize  this  plaintitT,  nor  can  the  plaintitT  seek  to 
restrain  the  union,  its  members  or  agents  from  peaceably  persuading  proposed 
patrons  of  the  plaintiff  from  trading  in  his  shop.    The  doing  of  those  things  will 


462  BOYCOTTS  [CHAP.  VII 

GOMPERS  V.  BUCKS  STOVE  &  RANGE  CO. 

SuPEEME  Court  of  the  United  States.     1911 

221  U.  S.  418 

This  is  a  proceeding  to  reverse  a  judgment,  finding  that  Samuel 
Gompers,  John  Mitchell,  and  Frank  Morrison  were  guilty  of  con- 
tempt in  violating  the  terms  of  an  injunction  restraining  them  from 
continuing  a  boycott,  or  from  publishing  any  statement  that  there 
was  or  had  been  a  boycott  against  the  Bucks  Stove  &  Range  Co, 
The  contempt  case  grew  out  of  litigation  reported  in  33  App.  D.  C. 
83,  516.  It  will  only  be  necessary  to  briefly  refer  to  the  facts  set. out 
in  that  record. 

The  American  Federation  of  Labor  is  composed  of  voluntary 
associations  of  labor  unions  with  a  large  membership.  It  publishes 
the  American  Federationist,  which  has  a  wide  circulation  among  the 
public  and  the  Federation.  Samuel  Gompers  is  president  and  editor 
of  the  paper.  John  Mitchell  is  vice-president  of  the  Federation  and 
president  of  the  United  Mine  Workers,  one  of  the  affiliated  unions. 
Frank  Morrison  has  charge  of  the  circulation  of  the  paper.  The 
Federation  had  a  difference  as  to  the  hours  of  labor  with  the  Bucks 
Stove  &  Range  Co.,  of  which  J.  W.  Van  Cleave  was  president,  who 
was  also  president  of  the  American  Manufacturers'  Association. 
This  controversy  over  the  hours  of  work  resulted  in  a  boycott  being 
declared  against  the  Bucks  Stove  &  Range  Co.,  and  it  was  there- 
upon declared  "Unfair"  and  was  published  in  the  American  Fed- 
erationisL  on  the  "Unfair"  and  "We  don't  patronize"  lists.  The 
company  filed  in  the  Supreme  Court  of  the  District  of  Columbia  its 
bill  against  the  Federation,  the  defendants  above  named  and  other 
officers,  alleging  that  the  defendants  had  entered  into  a  conspiracy 
to  restrain  the  company's  state  and  interstate  business,  in  pursuance 
of  which  they  had  boycotted  it,  published  it  on  the  unfair  lists,  and 
had  by  threats  also  coerced  merchants  and  others  to  refrain  from 
buying  Bucks'  products  for  fear  that  they  themselves  would  be  l)oy- 
cotted  if  they  continued  to  deal  with  that  company.  The  result  of 
the  boycott  had  been  to  prevent  persons  from  dealing  with  it  and 
had  greatly  les.sened  its  business  and  caused  irreparable  damage. 

After  a  lengthy  hearing,  the  court  on  December  IS,  1907,  signed 
a  temporary  injunction,  which  became  effective  when  the  Ijond  re- 
quired was  given  on  December  the  23d,  .  .  . 

not  be  restrained.  But  a  judgment  will  be  entered  here  restraining  the  individ- 
ual defendants  named  here  and  the  defendant  union,  its  ofliecrs,  members,  agents, 
and  employees  from  con>>;n'gatiiig  in  front  of  plaint ifT's  shop,  from  marehing  up 
and  down  upon  the  sidewalk  in  front  of  his  shop,  from  hloekading  the  entrance 
to  his  store  and  from  in  any  way  or  manner  preventing  intending  customers  from 
entering  or  departing  from  j)laintifT's  shop,  or  in  any  manner  by  threats,  vio- 
lence, intimidation  or  force,  interfering  with  plaintilT's  employees  or  those  who 
may  seek  emi)loyment  from  plaintilT." 


SECT,  III]  NON-COERCIVE    BOYCOTT  463 

Thereafter  testimony  was  regularly  taken,  and  on  March  23, 
190S,  the  injuiietion  was  made  p(,'rmanent,  with  provisioas  ahnost 
identical  with  the  temporary  order  of  December  17,  1907. 

From  this  final  decree  the  defendants  appealed,  hut  before  a  decision 
was  had,  the  Hucks  Stove  cV  Kari^e  Co.  bc^ran  contemi)t  |)roceedinKS, 
by  filing  in  the  Supreme  ( '(iurt  of  the  district  a  ix'tition  entitled 
"Bucks  Stove  &  UanKc  Co.,  plaintitT,  v.  The  American  Fe<leration 
of  Labor  et  al,  defendants,  No.  27,305,  Equity,"  allesing  that  peti- 
tioner had  "filed  in  this  cause  its  original  bill  of  complaint,  naming 
as  defendants,  amonu;  others,  Samuel  Compers,  Frank  Morrison,  and 
John  Mitchell."   .   .   . 

Mr.  Justick  J^.v.m.uj,  after  making  the  foregoing  statement,  de- 
livered the  opinion  of  the  court. 

The  defendants,  Samuel  Compers,  John  Mitchell,  and  Frank 
Morrison,  were  found  guilty  of  contempt  of  court  in  making  certain 
publications  prohibited  by  an  injunction  from  the  Supreme  Court 
of  the  District  of  Columi^ia.  They  were  sentenced  to  imprisonment 
for  twelve,  nine,  and  six  months  respectively,  and  this  proceeding 
is  pro.secuted  to  reverse  that  judgment. 

The  order  alleged  to  have  i)een  vicjlated  was  granted  in  the  equity 
suit  of  the  "Bucks  Stove  &  Range  Co.  r.  The  American  Federation 
of  Fal)()r  and  others,"  in  which  the  court  issued  an  injunction  re- 
straining all  the  defendants  from  boycotting  the  complainant,  or  from 
pulilisiiing  or  otherwise  making  any  statement  that  the  Bucks  Stove 
tV-  Range  Co.  was,  or  had  been,  on  the  "Unfair"  or  "We  don't  pat- 
ronize" lists.  Some  months  later  the  complainant  filed  a  petition 
in  the  cause,  alleging  that  the  three  defendants  above-named,  parties 
to  the  original  cause,  in  contempt  of  court  and  in  violation  of  its 
ortler,  hatl  disobeyed  the  injunction  by  pul)lishing  statements  which 
either  directly  or  indirectly  called  attention  to  the  fact  that  the 
Bucks  Stove  &  Range  Co.  was  on  the  "Unfair"  list,  and  that  they 
had  thereby  continued  the  boycott  which  had  been  enjoined. 

The  defendants  tiled  separate  answers  under  oath,  ami,  each 
denied:  (1)  That  they  had  been  in  contempt  or  disregard  of  the 
court's  orders;  (2)  That  the  statements  complained  of  constituted 
any  violation  of  the  order;  and,  on  the  argument,  (3)  contended 
that  if  the  j^ublication  should  be  construed  to  amount  to  a  violation 
of  the  injunction  they  could  not  i)e  pvmished  therefor,  inn-ause  the 
court  must  not  only  possess  jurisdiction  of  the  parties  and  the  sub- 
ject-matter, but  must  have  authority  to  render  the  particular  juilg- 
nient.  Insisting,  therefore,  that  the  court  could  not  abridge  the 
liberty  of  speech  or  freedom  of  the  press,  the  defendants  claim  that 
the  injunction  as  a  whole  was  a  nullity,  and  that  no  contenqit  pro- 
ceeding could  be  maintained  for  any  disobedience  of  any  of  its  pro- 
visions, general  or  special. 

If  this  last  proposition  wcr(>  sound  it  would  Ik-  unneces.>^ary  to  go 
further  into  an  examination  of  the  case  or  to  determine  whether 


464  BOYCOTTS  [CHAP.  VII 

the  defendants  had  in  fact  disobeyed  the  prohibitions  contained  in 
the  injunction.  Ex  parte  Rowland,  104  U.  S.  612.  But  we  will  not 
enter  upon  a  discussion  of  the  constitutional  question  raised,  for  the 
general  provisions  of  the  injunction  did  not,  in  terms,  restrain  any 
form  of  pubhcation.  The  defendants'  attack  on  this  part  of  the  in- 
junction raises  no  question  as  to  an  abridgment  of  free  speech,  but 
involves  the  power  of  a  court  of  equity  to  enjoin  the  defendants  from 
continuing  a  boycott  which,  by  words  and  signals,  printed  or  spoken, 
caused  or  threatened  irreparable  damage. 

Courts  differ  as  to  what  constitutes  a  boycott  that  may  be  en- 
joined. All  hold  that  there  must  be  a  conspiracy  causing  irreparable 
damage  to  the  business  or  property  of  the  complainant.  Some  hold 
that  a  boycott  against  the  complainant,  by  a  combination  of  per- 
sons not  immediately  connected  with  him  in  business,  can  be  re- 
strained. Others  hold  that  the  secondary  boycott  can  be  enjoined, 
where  the  conspiracy  extends  not  only  to  injuring  the  complainant, 
but  secondarily  coerces  or  attempts  to  coerce  his  customers  to  re- 
frain from  dealing  with  him  by  threats  that  unless  they  do  they 
themselves  will  be  boycotted.  Others  hold  that  no  boycott  can  be 
enjoined  unless  there  are  acts  of  physical  violence,  or  intimidation 
caused  by  threats  of  physical  violence. 

But  whatever  the  requirement  of  the  particular  jurisdiction,  as 
to  the  conditions  on  w^hich  the  injunction  against  a  l^oycott  may 
issue;  when  these  facts  exist,  the  strong  current  of  authority  is  that 
the  publication  and  use  of  letters,  circulars  and  printed  matter  may 
constitute  a  means  whereby  a  boycott  is  unlawfully  continued,  and 
their  use  for  such  purpose  may  amount  to  a  violation  of  the  order  of 
injunction.  Reynolds  v.  Davis,  198  Mass.  300;  Sherry  v.  Perkins, 
147  Mass.  212;  Codman  v.  Crocker,  203  Mass.  150;  Brown  v.  Jacobs, 
115  Ga.  429,  431;  Gray  v.  Council,,  91  Minn.  171;  Lohse  Co.  v, 
Fuelle,  215  Mo.  421,  472;  Thomas  'v.  Railroad  Co.,  62  Fed.  Rep. 
803,  821;  Continental  Co.  v.  Board  of  Underwriters,  67  Fed.  Rep. 
310;  Beck  v.  Teamsters'  Union,  118  Mich.  527;  Pratt  Food  Co.  v. 
Bird,  148  Mich.  632;  Barr  v.  Essex,  53  N.  J.  Eq.  102.  See  also  Lud- 
wig  V.  Western  Union  Telegraph  Co.,  216  U.  S.  156;  Bitterman  v. 
L.  &  N.  R.  R.,  207  U.  S.  206;  Board  of  Trade  v.  Christie,  198  U.  S. 
236;  Scully  v.  Bird,  209  U.  S.  489. 

While  the  bill  in  this  case  alleged  that  complainant's  interstate 
business  was  restrained,  no  relief  was  asked  under  the  provisions  of 
the  Sherman  Anti-Trust  Act.  But  if  the  contention  be  sound  that 
no  court  under  any  circumstances  can  enjoin  a  boycott  if  spoken 
words  or  printed  matter  were  used  as  one  of  the  instrumentalities 
by  which  it  was  made  effective,  then  it  could  not  do  so,  even  if  in- 
terstate commerce  was  restrained  by  means  of  a  blacklist,  boycott 
or  printed  device  to  accomplish  its  i)urpose.  And  this,  too,  notwith- 
standing sec.  4  (act  of  July  2,  1890,  c.  647,  26  Stat.  209)  of  that  act 
provides,  that  where  such  commerce  is  unlawfully  restrained  it  shall 


SECT.  Ill]  NON-COERCIVE   BOYCOTT  405 

be  the  duty  of  the  attorney  general  to  institute  proceedings  in  equity 
to  prevent  and  enjoin  violations  of  the  statute. 

In  Loewe  v.  Lawlor,  2()S  l'.  8.  274,  tlie  statute  was  held  to  apply 
to  any  unlawful  comminution  resuhing  in  restraint  of  interstate 
commerce.  In  that  case  the  tlamages  sued  for  were  occasioned  by 
acts  which,  among  other  things,  did  include  the  circulation  of  ad- 
vertisements. But  the  principle  announced  by  the  court  wiis  gen- 
eral. It  covered  any  illegal  means  by  wliich  interstate  commerce 
is  restrained,  whether  by  unlawful  combinaticjns  of  capital,  or  un- 
lawful combinations  of  labor;  and  we  think  also  whether  the  re- 
straint be  occasioned  l)y  unlawful  contracts,  trusts,  pooling  arrange- 
ments, blacklists,  boycotts,  ccxrcion,  threats,  intimidation,  and 
whetiicr  these  be  made  efTective,  in  wii(>le  or  in  part,  l)y  acts,  w(trds 
or  printed  matter. 

The  court's  protective  and  restraining  powers  extend  to  every 
device  whereby  property  is  irreparably  damaged  or  commerce  is 
illegally  restrained.  To  hold  that  tile  restraint  of  trade  under  the 
Sherman  Anti-trust  Act,  or  on  general  principles  of  law,  could  be  en- 
joinetl,  but  that  the  means  through  which  the  restraint  was  accom- 
plished could  not  be  enjoined  would  be  to  render  the  law  impotent. 

Society  itself  is  an  organization  and  do(>s  not  ol)ject  to  organiza- 
tions for  social,  religious,  business  and  all  legal  i)urposes.  The  law, 
therefore,  recognizes  the  right  of  workingmen  to  unite  and  to  invite 
others  to  join  their  ranks,  thereby  making  available  the  strength, 
influence  and  power  that  come  from  such  association.  By  virtue 
of  this  right,  powerful  labor  unions  have  been  organized. 

But  the  very  fact  that  it  is  lawful  to  form  these  bodies,  with  nuil- 
titudes  of  members,  means  that  they  have  thereby  acquired  a  vast 
power,  in  the  presence  of  which  the  individual  may  be  helpless.  This 
power,  when  imlawfully  used  against  one,  cannot  be  met,  except  by 
his  purchasing  peace  at  the  cost  of  submitting  to  terms  which  involve 
the  sacrifice  of  rights  protected  by  the  Constitution;  or  by  standing 
on  such  rights  and  appealing  to  the  preventive  powers  of  a  court  of 
equity.  AVhen  such  appeal  is  made  it  is  the  duty  of  government  to 
protect  the  one  against  the  many  as  well  as  the  many  against  the  one. 

In  the  case  of  an  unlawful  conspiracy,  the  agreement  to  act  in 
concert  when  the  signal  is  published,  gives  the  words  "Unfair," 
"We  don't  patronize,"  or  similar  expressions,  a  force  not  inhering 
in  the  words  themselves,  and  tlierefore  exceeding  any  possible  right 
of  speech  wiiich  a  single  individual  might  have.  Under  such  cir- 
cumstances they  become  what  have  been  called  "verbal  acts,"  and 
as  much  subject  to  injunction  as  the  use  of  any  other  force  whereby 
property  is  unlawfully  damaged.  When  the  facts  in  such  cases 
warrant  it,  a  court  having  jurisdiction  of  the  parties  and  subject- 
matter  has  power  to  grant  an  injunction.'   .   .  . 

1  The  remainder  of  the  opinion,  dealing  with  tlie  question  of  whether  defend- 
ants were  guilty  of  contempt  and  with  the  i)rin('iples  of  the  law  underlying  con- 


466  BOYCOTTS  [CHAP.  VII 

LAWLOR  V.  LOEWE 

SuPKEME  Court  of  the  United  States.     1915 

235  U.  S.  522 

Mr.  Justice  Holmes  delivered  the  opinion  of  the  court. 

This  is  an  action  under  the  act  of  July  2,  1890,  c.  647,  sec.  7,  26 
Stat.  209,  210,  for  a  combination  and  conspiracy  in  restraint  of  com- 
merce among  the  States,  specifically  directed  against  the  plaintiffs 
(defendants  in  error),  among  others,  and  effectively  carried  out  with 
the  infliction  of  great  damage.  The  declaration  was  held  good  on 
demurrer  in  Loewe  v.  Lawlor,  208  U.  S.  274,  where  it  will  be  found 
set  forth  at  length.  The  substance  of  the  charge  is  that  the  plain- 
tiffs were  hat  manufacturers  who  employed  non-union  labor;  that 
the  defendants  were  members  of  the  United  Hatters  of  North  America 
and  also  of  the  .American  Federation  of  Labor;  that  in  pursuance 
of  a  general  scheme  to  unionize  the  labor  employed,  by  manufacturers 
of  fur  hats  (a  purpose  previously  made  effective  against  all  but  a 
few  manufacturers),  the  defendants  and  other  members  of  the  United 
Hatters  caused  the  American  Federation  of  Labor  to  declare  a  boy- 
cott against  the  plaintiffs  and  against  all  hats  sold  b}-  the  plaintiffs 
to  dealers  in  other  States  and  against  dealers  who  should  deal  in 
them;  and  that  they  carried  out  their  plan  with  such  success  that 
they  have  restrained  or  destroyed  the  plaintiffs'  commerce  with 
other  States.  The  case  now  has  been  tried,  the  plaintiffs  have  got 
a  verdict  and  the  judgment  of  the  District  Court  has  been  affirmed 
by  the  Circuit  Court  of  Appeals.  209  Fed.  Rep.  721;  126  C.  C.  A. 
445. 

The  grounds  for  discussion  under  the  statute  that  were  not  cut 
away  b}'  the  decision  upon  the  demurrer  have  been  narrowed  still 
further  since  the  trial  by  the  case  of  Eastern  States  Retail  Lumber 
Dealers'  Association  v.  United  States,  234  U.  S.  600.  Whatever 
may  be  the  law  otherwise,  that  case  establishes  that,  irrespective  of 
compulsion  or  even  agreement  to  oV)serve  its  intimation,  the  cir- 
culation of  a  list  of  "unfair  dealers,"  manifestly  intended  to  put  the 
ban  upon  those  whose  names  appear  therein,  among  an  important 
body  of  possible  customers  combined  with  a  view  to  joint  action 
and  in  anticipation  of  such  reports,  is  within  the  prohibitions  of  the 
Sherman  Act  if  it  is  intended  to  restrain  and  restrains  commerce 
among  the  States. 

It  requires  more  than  the  blindness  of  justice  not  to  see  that  many 
branches  of  the  United  Hatters  and  the  Federation  of  Labor,  to  both 
of  which  the  defendants  b(^l()ng(>d,  in  pursuance  of  a  plan  emanat- 
ing from  headquarters  made  use  of  such  lists,  and  of  the  primary 
and  secondary  boycott  in  their  effort  to  subdue  the  plaintiffs  to  their 

tempt  proceedings,  is  omitted.    The  conclusions  reached  by  the  court  led  it  to 
direct  a  reversal  of  the  judgment  rendered  by  the  Court  of  Appeals.  —  Ed. 


I 


SECT.  Ill]  NON-COERCIVE    BOYCOTT  407 

demands.  The  union  label  was  used  and  a  strike  of  the  plaintiffs' 
employees  was  ordered  and  earned  out  to  the  same  end,  and  the 
purpose  to  break  up  the  plaintiffs'  eommerce  affected  the  quality 
of  the  acts.  Loewe  r.  I.awlor,  20S  V.  S.  274,  299.  We  asree  witli 
the  Circuit  Court  of  Appeals  that  a  combination  and  cons[)iracy 
forbidden  by  the  statute  were  pr()\cd.   .   .   . 

Juilyimnt  affirmed. 

Legality  of  Boycott  iiy  Mkans  of  Notice  or  No.n-Coeucive  Pkk.si'a- 
8ION.  By  the  weight  of  authority  a  boycott  hy  means  of  non-eoercive  fHTsiiuwion 
or  notices  is  not  illegal.  In  additicjn  to  the  ca.se.s  in  the  te.xt  the  following  may 
be  cited  a.s  representative,  holding  such  boycotts  not  illegal:  Truax  v.  Bisbee 
Local,  19  Ariz.  379;  Local  I'nion  v.  Stathaki.'*,  l.'i.'j  Ark.  8(5;  Henrici  Co.  r.  Alex- 
ander, 198  111.  App.  568;  StefTes  v.  Union,  VM\  Minn.  2(KJ;  Gray  v.  Bldg.  Trades 
Council,  91  Minn.  171,  184;  Empire  Theatre  Co.  v.  Cloke,  53  \Iont.  183;  Iver- 
son  I'.  Dilno,  44  Mont.  270;  Marx  (Clothing  Co.  i'.  Watson,  108  Mo.  133;  Ex  jxirlt 
Heffron,  179  Mo.  App.  039;  Root  v.  AnderKon,  207  S.  W.  (Mo.)  255;  Buttcrick 
Pub.  Co.  V.  Typ.  Union,  100  N.  Y.  Supp.  292;  Heitkampcr  v.  Hoffman,  164  N.  Y. 
Supp.  533;   Ricliter  Bros.  v.  Union,  11  Ohio  Dec.  Rep.  45. 

Leading  ca.«e.s  holding  the  oppo.'jite  view  are:  Seattle  Brewing  Co.  v.  Hanson, 
144  P'ed.  1011;  Rocky  Mountain  Tel.  Co.  v.  Montana  Fed.  of  Labor,  156  Fed. 
809;  My  Maryland  Lodge  v.  Adt,  100  Md.  238;  Sherry  v.  Perkin.s,  147  Mass. 
212;  Beck  v.  Ry.  Teamsters'  Union,  118  Mich.  497  (but  here  circulars  were  al- 
leged to  be  fal.>^,  and  intimidation  was  proved);  Martin  r.  McFall,  65  X.  J.  Etj. 
91;  Roraback  v.  I'nion,  140  Minn.  481  (semble)  (where  defendants  sought  to 
prevent  plaintiff  working  him.self  in  his  own  shop). 

The  tendency  of  the  Knglisli  courts  may  be  seen  in  Collard  v.  Marshall,  [18921 
1  Ch.  571  (false  statement);  Si)ringHeld  Spinning  Co.  v.  Riley  (1808),  L.  R.  6  Eq. 
551  (intimidation).  But  see  Ware  and  DcFreville,  Ltd.  v.  Motor  Trade  .\ssn., 
11921]  3  K.  B.  40. 

Tertiary  Boycotts.  As  examples  of  the  so-called  "Tertiary  Boycott,"  see 
New  England  Cement  Gun  Co.  v.  McGivern,  218  Ma.ss.  198;  Pickett  v.  Walsh, 
192  Ma-ss.  572. 

Intern.\tional  Boycotts.  International  boycotts  are  becoming  more  and 
more  frequent.  See,  for  example,  U.  S.  Monthly  Labor  Rev.,  Vol.  11,  No.  3, 
pp.  184-188.    Compare  League  of  Nations  Covenant,  Art.  10. 


CHAPTER  VIII 
THE  BLACK  LIST 

BOYER  V.  WESTERN  UNION  TELEGRAPH  CO. 
"^_  U.  S.  Circuit  Court,  E.  D.  Missouri.     1903 

124  Fed.  246 

Rogers,  District  Judge.  The  plaintiffs  named  in  the  bill,  for  them- 
selves and  for  others  whom  they  describe  as  the  "remaining  members 
of  Local  Lodge  No.  3,  of  St.  Louis,  of  the  Commercial  Telegraphers' 
Union  of  America,"  filed  this  bill  in  equity  and  ask  for  an  injunc- 
tion. .  .  . 

A  careful  examination  of  the  bill  shows  that  the  gist  of  it  is  this: 
That  the  defendant,  having  become  aware  that  plaintiffs  had  be- 
come members  of  an  organization  known  as  the  Commercial  Teleg- 
raphers' Union  of  America,  immediately  discharged  them,  without 
notice  or  other  cause;  that  "the  defendant,  its  officers  and  agents, 
have  unlawfully  combined  and  confederated  together  to  destroy 
the  said  union,  and  intend  discharging  all  the  members  of  said  union 
from  the  services  of  the  defendant,  .  .  .  and  by  threats,  intimidation, 
and  coercion,  and  otherwise,  are  interfering  with  your  orators  and 
with  others  of  their  employees  for  uniting  with  the  Commercial 
Telegraphers'  Union  of  America,  and  are  seeking  to  prevent  those 
discharged  from  obtaining  employment  as  telegraph  operators"; 
that  defendant  "has  established  and  maintained  what  is  commonly 
known  as  a  '  blacklist.'  It  is  a  list  of  persons  who  have  been  in  their 
employ  and  who  have  been  discharged  by  the  defendant,  on  which 
are  placed  from  time  to  time  the  names  of  persons  incurring  the  dis- 
pleasure of  the  defendant  company,  and  its  officers  and  chief  opera- 
tors; and  the  defendant,  by  methods  which  are  not  fully  known  to 
your  orators,  and  which  cannot  be  fully  set  forth  herein,  prevents 
persons  whose  names  are  on  said  blacldist  from  again  obtaining  em- 
ployment as  telegraph  operators;  that  your  orators'  names  have 
been  placed  on  said  blacklist  solely  because  they  have  become  mem- 
bers of  the  Commercial  Telegraphers'  Union  of  America,  and  it  is 
the  intention  of  the  defendant  .  .  .  for  the  same  reason  to  discharge 
from  the  emplo}^  and  place  upon  said  blacklist  the  names  of  several 
hunched  oilier  persons  who  are  meml)ers  of  the  Local  Lodge  No.  3 
of  the  Commercial  Tel('graph(M's'  I'nioii  of  America,  and  thereby 
debar  these  your  orators  and  said  other  persons  .  .  .  from  obtaining 
employment  at  their  respective  locations  as  telegraph  operators,"  etc. 

468 


CHAP.  VIII]  THE    BLACK   LIST  469 

The  first  cause  of  complaint  is  that  plaintiffs  have  l)een  discharged 
without  notice  from  tiie  service  oi  the  defendant  for  no  other  cause 
than  that  they  joined  that  union.  Hut  the  answer  to  that  comi)laint 
is  that  in  a  free  country  like  ours  every  employee,  in  the  absence  of 
contractual  relations  binding  him  to  work  for  his  employer  a  given 
length  of  time,  luis  the  legal  right  to  (juit  the  service  of  his  employer 
without  notice,  and  either  with  or  witiiout  cause,  at  any  tinu,';  and 
in  the  al)sence  of  such  contractual  relations  any  employer  may  legally 
discharge  his  employee,  with  or  without  notice,  at  any  time. 

The  .second  ground  for  complaint  is  that  defendant,  its  officers 
and  agents,  have  unlawfully  combined  and  confederated  together 
to  destroy  the  said  union,  and  intend  discharging  all  the  meml>ers 
of  .said  union  from  the  service  of  the  defendant,  and  by  threats,  in- 
timidation, and  coercion,  and  otherwise,  arc  interfering  with  the 
plaintiffs  and  with  others  of  their  employees  for  uniting  with  the 
union,  and  are  seeking  to  prevent  tho.se  discharged  from  ol)taining 
employment.  I  need  not  take  time  to  nmltiply  authorities  to  show 
that  there  is  no  such  thing  in  law  as  a  conspiracy  to  do  a  lawful  thing. 
If  the  last  allegation  means  anything,  it  is  that  the  defendant,  its 
officers  and  agents,  have  conspired  to  destroy  the  union  by  discharg- 
ing all  its  members  in  its  employ,  and  refusing  to  employ  others, 
solely  for  the  reason  that  they  were  members  of  the  union.  But  it 
is  not  unlawful,  in  the  absence  of  contractual  relations  to  the  con- 
trary, to  discharge  them  for  that  or  any  other  reason,  or  for  no  reason 
at  all.  Hence  there  is  no  such  thing  in  law  as  a  conspiracy  to  do  that, 
and  it  matters  not  whether  you  call  such  an  agreement  a  conspiracy, 
a  combination,  or  a  confederation. 

But  it  is  said  that  the  defendants  "by  threats  of  intimidation  and 
coercion,  and  otherwise,"  so  interfered  with  plaintiffs  and  others  of 
its  employees  l)ecau.sc  they  united  with  said  union.  But  it  does  not 
appear  what  the  threats  were,  what  the  intimidation  was,  or  what 
the  coercion  was,  of  which  thej'  complain.  Such  an  allegation  is 
not  one  of  fact;  it  is  one  of  conclusion.  What  did  defendant  threaten 
to  do?  Perhaps  it  was  to  discharge  them,  or  perliaps,  if  not  em- 
ployed by  it  already,  to  not  employ  them.  But  such  a  threat  is  not 
illegal.  It  is  not  illegal  to  threaten  to  do  a  lawful  thing.  It  may  be 
defendant  threatened  to  employ  non-union  men,  instead  of  mem- 
bers of  the  union;  but  that,  if  true,  is  not  illegal.  Defendant  had 
a  perfect  right  to  employ  ^^hom  it  pleased,  if  it  could.  How  ilid  de- 
fendant intimidate  or  coerce  plaintiff?  The  complaint  gives  no 
answer.  It  will  not  be  presumed  that  the  threats,  intimidation,  or 
coercion  complained  of  involved  illegal  acts.  The  law  never  pre- 
sumes wrong,  or  crime,  or  illegality;  it  presumes  always  in  favtir  of 
right  and  legal  action.  In  the  absence  of  any  allegeil  wrongful  act 
or  threat,  it  would  presume  that  tlefendant's  interference  was  law- 
ful and  not  unlawful.  True,  it  is  alleged  that  defendant,  its  officers 
and  agents,  unlawfully  combiiKMl  and  c()nf(Ml(M-at(>(l  to  destroy  the 


470  THE   BLACK   LIST  [CHAP.  VIII 

union.  But  what  is  unlawful  is  a  question  of  law;  whether  a  thing 
done  is  unlawful  depends  on  what  is  done  or  threatened  to  be  done. 
But  what  the  defendant  company,  its  officers  and  agents,  combined 
or  confederated  to  do  in  order  to  destroy  the  union,  is  the  precise 
thing  the  complaint  fails  to  show.  The  court  must  always  be  able 
to  look  at  the  facts  and  say  that  if  these  facts  are  true  they  are  il- 
legal; otherwise  there  is  no  ground  for  invoking  its  protective  agency. 

But  plaintiffs  say  defendant,  its  officers  and  agents,  are  seeking 
to  prevent  those  discharged  from  obtaining  employment  as  teleg- 
raphers. But  how  are  they  seeking  to  do  so;  what  are  they  doing; 
are  they  doing  acts  that  are  unlawful?  If  so,  what  are  the}^?  The 
complaint  gives  no  answer.  There  is  no  allegation  in  the  complaint 
that  there  were  any  contractual  relations  between  plaintiffs  and 
the  defendant  company  to  retain  plaintiffs  in  the  service  for  any 
given  period.  But  if  there  were,  then  it  must  be  said  that  it  was 
illegal  to  discharge  them.  Yet  in  that  event  equity  can  give  no 
relief;  the  remedy  is  at  law  for  a  breach  of  contract,  and  each  man 
injured  must  sue  separately,  and  in  his  own  right,  for  damages 
sustained.  It  would  be  intolerable  if  a  man  could  be  compelled  by 
a  court  of  equity  to  serve  another  against  his  will,  or  if  a  man  could 
be  compelled  to  retain  in  his  employ  one  he  does  not  want;  courts 
of  equity  exercise  no  such  power  and  grant  no  such  relief. 

But  it  is  said  that  defendant  maintains  a  blacklist  containing  a 
list  of  names  of  such  persons  as  may  have  incurred  its  displeasure 
and  have  been  discharged  from  its  service,  and  that,  by  methods 
not  known  to  them,  it  prevents  such  discharged  persons  from  getting 
employment  as  telegraph  operators;  that  they  have  blacklisted 
people  solely  because  they  belong  to  the  union,  and  that  they  intend 
to  blacklist  others  for  the  same  thing,  etc.  We  have  seen  it  is  not 
unlawful  to  discharge  plaintiffs  because  they  belong  to  the  union. 
Is  it  unlawful  for  defendant  to  keep  a  book  showing  that  they  were 
discharged  because  they  belonged  to  the  union?  The  union  pre- 
sumably, and  especially  in  view  of  the  allegations  in  the  bill,  is  an 
honorable,  reputable,  and  useful  organization,  intended  to  better 
the  conditions  and  elevate  the  character  of  its  members.  Is  it  il- 
legal for  defendant  to  keep  a  book  showing  that  it  had  discharged 
members  of  such  a  union  solely  because  they  belong  to  it?  That 
seems  to  be  the  real  essence  of  the  bill.  Is  it  illegal  to  notify  others 
that  it  keeps  such  a  book  and  that  they  can  inspect  it,  or  to  inform 
others  what  such  a  book  shows?  That  seems  to  be  the  ground  of 
complaint.  There  can  be  no  question  about  it;  the  positive,  direct, 
and  uiHH|uivocal  allegation  is  that  defendant  keeps  such  a  l)ook; 
that  plaintiffs  are  placed  on  it  solely  because  they  belong  to  the 
union,  and  have  been  discharged  solely  because  they  did  l)elong  to 
the  union.  Can  a  court  of  equity  grant  relief  to  a  man  who  says  for 
his  cause  of  action  that  he  belongs  to  a  reputable  organization,  and 
that  he  has  been  discharged  solely  because  he  did  belong  to  it;  that 


CHAP.  VIII]  THE    BLACK    LIST  471 

his  employer  who  discharged  him  keeps  a  book  on  which  is  placed 
his  name,  and  has  set  opposite  thereto  the  fact  that  he  discharged 
him  solely  because  he  belonged  to  such  organization;  and  that  he 
gives  that  information  to  other  persons,  who  refuse  to  employ  him 
on  that  account?  Suppose  a  man  should  file  a  bill  alli-ging  that  he 
belonged  to  the  Honorable  and  Ancient  Order  of  Freemasons,  or  to 
the  Presbyterian  Cliurch,  or  to  the  (Irand  Army  of  the  Uepuljhc; 
that  his  employer  had  discharged  him  solely  on  that  account;  that 
he  had  discharged  others  of  his  employees,  and  intended  to  discharge 
all  of  them,  for  the  same  reason;  that  he  kept  a  book  wliicii  con- 
tained all  the  names  of  such  tlischarg(,'d  persons,  and  set  opposite 
the  name  of  each  discharged  person  the  fact  that  he  hatl  been  dis- 
charged solely  on  the  ground  that  he  belonged  to  such  organization; 
and  that  Ik;  had  given  such  information  to  others,  who  refused  to 
emj)loy  such  persons  on  that  account.  Is  it  possible  a  court  of  equity 
could  grant  relief?  If  so,  pray,  on  what  ground?  And  yet  that  is  a 
perfectly  parallel  case  to  this  as  made  by  the  bill. 

Those  who  may  be  interested  in  the  questions  raised  by  the  de- 
nun-rer  to  this  bill  will  be  entertained  and  instructed  by  reading  the 
following  cases,  and  especially  the  first :  Payne  v.  Western  &  Atlantic 
R.  R.  Co.,  49  Am.  Rep.  6G6,  Dinah  Worthington  et  al.  v.  James 
Waring  et  al,  157  Mass.  421,  32  N.  E.  744,  20  L.  R.  A.  342,  34  Am. 
St.  Rep.  294;  Hundley  v.  Louisville  tt  Nashville  Railway  Co.,  48 
S.  W.  429,  88  Am.  St.  Rep.  29S;  Raymond  v.  Russell  et  al,  9  X.  E. 
544,  58  Am.  Rep.  137;  :McDonald  v.  111.  Central  R.  R.,  187  111.  529, 
58  N.  E.  463;  Wabash  R.  R.  Co.  v.  Hannahan  ct  al.  (C.  C.)  121  Fed. 
563. 

These  cases,  and  the  cases  cited  in  them,  discuss  and  cover  every 
principle  involved  in  this  bill,  although,  of  course,  the  facts  are  dif- 
ferent. I  have  not  discussed  the  right  of  the  plaintifTs  to  bring  this 
suit  for  themselves  and  others.  The  bill  is  without  equity  as  to  the 
complainants  named,  and  it  is  useless,  therefore,  to  discuss  their 
right,  under  the  allegations  of  the  })ill,  to  represent  other  persons. 
It  is  enough  to  say  that  there  is  no  apt  authority  cited,  and  none 
found,  to  sustain  that  right. 

The  denmrrer  is  sustained  from  want  of  equit}'  in  the  bill.' 

'  Compare:  Corncllier  i'.  Haverhill  Shoe  Manufacturers'  Assn.,  221  Mass.  554 
(blacklist  declared  illegal).  The  court  in  that  case  (p.  559)  says:  "A  combina- 
tion to  blacklist  is  the  counter  weapon  to  a  combination  to  boycott,  and  is  open 
to  similar  legal  objections,  when  directed  against  persons  with  whom  those  com- 
bining have  no  tratle  dispute,  or  when  the  concerted  action  coerces  the  individual 
members,  by  implied  threats  or  otherwise,  to  withhold  employment  from  those 
whom  ordinarily  they  would  employ." 

Compare  the  earlier  Massachusetts  ca.se  of  Worthington  v.  Waring,  157  Ma.ss. 
421.     See  also  Weston  v.  Burnicoat,  175  Mass.  454. 


I 


472  THE    BLACK   LIST  [CHAP.  VIII 

WILLNER  V.  SILVERMAN 

Court  of  Appeals  of  Maryland.     1909 

109  Md.  341 

Henry,  J.,  delivered  the  opinion  of  the  court. 

This  is  an  action  on  the  case  brought  by  the  appellant,  the  plain- 
tiff below,  against  the  appellees,  the  defendants  below,  grounded 
on  a  declaration  containing  four  counts,  the  first  three  of  which 
allege  in  substance  that  the  defendants,  after  discharging  the  plain- 
tiff from  their  employment,  mahciously  conspired  or  contrived  to 
injure  him  by  blacklisting  him  and  writing  a  letter,  containing  false 
statements,  to  the  members  of  an  association,  known  as  the  Cloth- 
iers' Board  of  Trade  of  Baltimore  City  and  requesting  such  associa- 
tion members  to  refuse  emplo^Tnent  to  the  plaintiff,  while  the  fourth 
count  sets  out  at  length  the  details  of  the  grievance  complained  of, 
omitting  the  charge  of  conspiracy. 

The  defendants  filed  the  general  issue  plea,  and  the  verdict,  under 
the  instruction  of  the  court,  being  for  the  defendants,  the  plaintiff 
entered  an  appeal  to  this  court. 

The  appellant  was  a  cutter  of  cloth  in  the  establishment  of  Harris 
Silverman,  one  of  the  appellees,  in  Baltimore  City,  and  on  Decem- 
ber 19,  1905,  was  discharged,  his  employer  sending  for  him  on  the 
afternoon  of  that  day  to  come  to  his  office,  and  saying  to  him:  "  Will- 
ner,  you  are  a  disorganizer  and  an  agitator,  I  cannot  use  you  any 
longer;  here  is  your  envelope,"  which  contained  wages  up  to  date. 

When  Willner  asked  why  he  said  that,  Mr.  Silverman  replied: 
"Because  you  told  a  man,  who  has  worked  for  me  before  and  who 
left  me  and  started  in  again,  I  hired  him  yesterday  —  you  told  him 
to  ask  for  more  money."  Willner  said:  "Mr.  Silverman,  I  did  not 
tell  him  to  ask  for  more  money,  I  merely  said  to  him,  '  Cosman,  is 
that  true  what  a  fellow  tell  me  that  you  started  in  again  for  $2.75.' 
He  said:   '  Yes  ';  I  said:   '  Charlie,  I  am  surprised  at  you.'  " 

It  seems  that  the  man,  Cosman,  who  had  been  hired  the  preceding 
day,  in  consequence  of  this  conversation  with  the  appellant,  de- 
manded an  increase  of  wages  to  $3.00  per  day,  which  was  granted. 

On  the  day  of  the  discharge,  Moses  Silverman,  son  of  Harris 
Silverman,  and  one  of  his  employees,  wrote  the  following  letter  to 
the  Clothiers'  Board  of  Trade,  an  organization  comprising  in  its 
membership  about  twenty  clothing  dealers  of  Baltimore,  including 
Harris  Silverman,  one  of  the  appellees,  it  being  one  of  the  rules  of 
said  association  that  an  employee  discharged  by  one  member  should 
be  refused  employment  by  all  other  members. 

"Baltimore,  December  19,  1906. 

Mr.  Sylv.\n  Hayes  Lauchheimer,  Local. 
Dear  Sir:  — 

We  desire  to  call  your  attention  to  Mr.  Jos.  Willner,  a  cutter  who 
was  formerly  in  my  employ.    We  would  request  you  to  see  that  he 


CHAP.  VIII]  THE    BLACK    LIST  473 

is  refused  employment  in  all  Association  houses  in  which  he  may 
apply  for  a  position.  He  was  the  shop  chairman  of  my  cutting 
room,  and  in  addition  to  this,  he  has  been  a  source  of  trouble.  In 
other  words,  he  has  been  trying  to  disorganize  my  rule.  \N'e  took 
on  a  cutter  yesterday  at  a  certain  price,  and  when  he  went  to  work 
this  morning,  he  told  him  to  insist  on  more  money,  otherwise  we 
suppfjsc  they  would  have  made  it  unplca.sant  for  him.  He  came  down 
and  stated  his  demand,  to  which  we  acceded,  but  thought  we  would 
be  better  off  by  discharging  Mr.  ^\'illner,  who  was  the  cause  of  the 
disturbance.  We  think  it  no  more  than  right  that  the  Association 
should  back  us  up  in  this  matter,  and  refuse  this  man  employment, 
as  we  would  like  to  make  an  example  of  him. 

Yours  truly, 
M.  S.  (Signed)     Harris  Silverman  &  Sons." 

Evidence  was  offered  tending  to  prove  that  this  letter  was  duly 
received  by  the  Clothiers'  Board  of  Trade,  and  that  copies  of  the 
same  were  made  by  the  clerk,  according  to  routine,  and  pn^mptly 
delivered  to  the  various  members  of  the  association. 

\\illner,  on  the  morning  after  his  discharge,  started  out  to  secure 
other  employment,  and  continued  his  efforts,  without  succ(>ss,  until 
January  4th,  following,  when  he  was  employed  by  M.  Lauchheimer 
&  Sons,  one  of  the  members  of  the  Clothiers'  Board  of  Trade.  In 
his  search  for  work,  the  plaintiff  made  application  to  eight  different 
clothing  firms  in  Baltimore,  .six  of  them  l)eing  members  of  the  afore- 
said association. 

At  the  conclusion  of  the  plaintiff's  testimony,  the  defendants 
offered  two  prayers,  the  first  asking  the  court  to  instruct  the  jury 
that  there  was  no  evidence  legally  sufficient  to  entitle  the  j)laintiff 
to  recover,  and  their  verdict  nuist  l)e  for  the  defendants,  and  the 
second  asking  for  an  instruction  that  there  was  no  evidence  legally 
sufficient  to  entitle  the  plaintiff  to  recover  against  Harris  Silver- 
man and  Louis  Silverman. 

Both  of  the.se  prayers  were  granted,  to  which  action  the  plaintiff 
excepted,  and  these  exceptions  constituting  the  11th  and  r2th  l)ills 
will  l)e  first  discussed. 

Preliminary  thereto,  it  may  be  well  to  announce  as  a  principle 
of  law  that  any  malicious  interference  with  the  business  or  occupa- 
tion of  another,  if  followed  by  damage,  is  an  actional)le  wrong.  Such 
interference  may  be  b}'  a  single  individual,  or  In-  a  numl)er  of  in- 
dividuals conspiring  together,  but  it  is  the  damage  which  constitutes 
the  gist  of  the  action,  and  not  the  conspiracy,  the  latter  being  a 
matter  of  aggravation,  if  proven,  as  affecting  tiie  means  and  manner 
of  redress.  We  find  no  Maryland  case  that  goes  to  the  extent  of 
sustaining  the  position  contended  for  by  the  appellant  to  the  effect 
that  the  "blacklisting"  of  discharged  employees  by  a  combination 
of  employcM-s  is  in  itself  actionable,  without   proof  of  ilamage.   .   .   . 


474  THE   BLACK   LIST  [CHAP.  VIII 

An  employer,  where  no  right  of  contract  is  involved,  may  lawfully 
discharge  an  employee  at  what  time  he  pleases  and  for  what  cause 
he  chooses,  while,  on  the  other  hand,  an  employee  may  sell  his  labor 
to  whomsoever  he  desired  at  such  wages  as  he  is  willing  to  accept 
and  may  quit  such  employment  at  his  pleasure,  yet  neither  has  the 
right  to  interfere,  without  cause,  with  the  business  or  occupation  of 
the  other. 

While  the  law  does  not  furnish  a  shield  against  the  effects  of  fair 
and  honest  competition,  yet  injury  to  the  business  of  another,  if 
accomphshed  by  threats  or  coercion,  constitutes  a  ground  of  action 
for  damages  on  the  part  of  the  person  so  injured. 

In  furtherance  of  their  common  welfare  and  in  settlement  of  their 
ofttimes  conflicting  interests,  both  employers  and  employees  stand 
upon  a  plane  of  perfect  equality  before  the  law,  enjoying  the  same 
freedom  and  amenable  to  the  same  restrictions.  Both  may  combine 
in  unions  or  associations,  but  such  associations,  like  individuals, 
must  emplo}'  lawful  methods  for  the  attainment  of  lawful  pur- 
poses. 

This  was  not  always  so,  as  appears  from  the  account  of  the  prog- 
ress of  trade  unions,  as  given  in  the  2d  volume  of  McCarthy's  "His- 
tory of  Our  Own  Times,"  referred  to  by  the  appellant's  brief.  Look- 
ing at  the  subject  in  retrospect  it  is  difficult  to  understand  how  the 
conditions  and  sentiments  therein  described  could  obtain  lodgment 
in  pubhc  opinion  or  receive  sanction  in  the  courts,  for  it  is  now  clearly 
settled  that  the  same  law  which  permits  the  organization  of  em- 
ployers and  interposes  to  protect  manufacturers  or  merchants  from 
the  violence  of  ''strikes,"  or  the  "intimidation  of  boycotts,"  is  also 
vigilant  to  see  that  the  right  and  opportunity  to  work,  which  is  the 
most  valuable  asset  of  the  laboring  man,  as  well  as  the  privilege  of 
organization,  shall  not  be  unjustifiably  interfered  with  by  employers, 
acting  either  as  individuals  or  in  combinations.  Barnes  v.  Typo- 
graphical Union,  232  111.  424;  Walker  v.  Cronin,  107  Mass.  562; 
Kimball  v.  Harman,  34  Md.  407;  Robertson  v.  Parks,  76  Md.  135, 
Khngell's  Pharmacy  v.  Sharpe  &  Dohmc,  104  Md.  231;  8  Cyc, 
650. 

About  the  first  element  for  recovery  in  the  plaintiff's  case,  we  have 
no  difficulty.  While  the  letter  of  December  19th  aforesaid,  is  not 
couched  in  extravagant  language,  yet  it  does  not  state  the  facts  of 
the  case  with  entire  accuracy,  and  the  concluding  sentence  of  the 
letter  is  some  evidence  of  malice  on  the  part  of  the  writer,  and  the 
circulation  of  such  letter  through  the  instrumentality  of  the  Cloth- 
iers' Board  of  Trade  was  an  actionable  wrong,  provided  damage 
resulted  therefrom. 

On  this  latter  point,  we  think  tliat  the  receipt  of  the  letter  of  De- 
cember 19th,  by  the  members  of  the  Clothiers'  Board  of  Trade,  a 
body  of  men  engaged  in  a  like  business  and  associated  together 


CHAP.  VIII]  THE    BLACK    LIST  475 

partly,  if  not  priiiuirily,  ff)r  the  puri)oso  of  (JiscipliniiiK  <*inployee8, 
are  facts  affording  .sonic  evidence  from  which  tlic  jury  niiglit  infer 
that  the  refusal  of  employment  to  the  plaintiff  was  because  of  the 
rule  of  the  association  and  the  rcfiuest  for  its  enforcement  by  the 
defendants.   .   .   . 

The  (jucstion  next  arises,  who  of  tiic  apiJcliccs  is  resp(jnsiblc  for 
the  wrong  alleged  in  the  narr.  The  uncontradicted  testimony  shows 
that  the  firm  of  Harris  Silverman  &  Sons  was  not  in  existence  at  the 
time  the  al)ove-cjuoted  letter  was  written,  nor  was  there  any  evidence 
whatever  to  show  that  Louis  Silverman  had  any  ccjnncction  with 
the  case.  Therefore  as  to  the  firm  of  Harris  Silverinan  &  Sons, 
which  did  not  come  into  existence  until  January  1,  1900,  and  as  to 
Louis  Silverman,  individually,  it  is  clear  that  there  was  no  right  of 
action. 

Concerning  Harris  Silverman,  there  is  no  evidence  legally  sufficient 
to  show  that  he  either  autliorized  or  subsequent!}'  ratified  the  action 
of  his  son  in  writing  the  letter.  The  only  circumstance  from  which 
it  could  be  inferred  that  he  had  knowledge  of  the  letter  and  took  no 
steps  to  repudiate  it,  is  that,  being  a  member  of  tlie  Clothiers'  Board 
of  Trade,  a  cop}'  was  delivered  to  him  along  with  tlie  other  members, 
but  this  is  opposed  by  the  equally  logical  inference  that  the  clerk 
might  not  have  deemed  it  necessary  to  deliver  to  Silverman  what 
was  practically  a  copy  of  his  own  letter.  Harris  Silverman  was  a 
witness  for  the  plaintiff,  and  in  reply  to  a  question  as  to  whether  he 
wrote  the  letter  said:  "Positively  not;  I  have  no  knowledge  of  it; 
don't  know  a  thing  about  it,  sir."  This  is  a  broad  answer,  but  even 
if  held  to  be  merely  responsive  to  the  question  concerning  the  writ- 
ing of  the  letter,  it  was  easy  for  the  plaintiif  to  have  followed  the 
question  up  by  a  direct  question  as  to  when,  if  ever,  the  letter  came 
to  his  knowledge.  This  the  plaintiff  failed  to  do,  and  we  think  has 
left  the  testimony  in  too  vague  and  indefinite  a  shape  to  provide  a 
basis  for  the  jury  to  infer  a  subsequent  notice  and  ratification  of 
the  letter  ])y  Harris  Silverman.  Nor  is  there  any  ground  for  hold- 
ing the  father  responsible  on  the  ground  of  the  agency  of  the  son, 
Moses  Silverman.  The  latter  testified  that  he  was  an  employee, 
who  occasionally  wrote  letters  of  minor  importance,  but  not  on  sub- 
jects of  serious  business.  The  letter  in  question  was  clearly  not 
about  a  routine  matter,  but  was  outside  of  the  usual  course  of  i)usi- 
ness,  about  which,  according  to  the  only  testimony  in  the  case,  the 
son  would  have  no  authority  to  take  any  steps  what<^ver.  Holding 
these  views,  we  think  the  second  prayer  of  the  defentlants  was  prop- 
erly granted  i)y  the  court. 

Moses  Silverman  admits  writing  the  letter  in  question,  ami,  un- 
der the  fourth  count  of  the  narr.,  but  not  under  the  other  counts, 
the  plaintiff  has  a  right' of  action  against  him.  The  first  prayer  of 
the  defendants  was,   therefore,  improperly  grant^nl,  and  the  judg- 


476  THE    BLACK   LIST  [CHAP.  VIII 

ment  on  that  account  should  be  reversed  and  the  cause  remanded 
for  a  new  trial.  .  .  . 

Judgment  reversed  with  costs  to  the  appellant,  and  cause  remanded 
for  new  trial} 

STATE  V.  JUSTUS 
Supreme  Court  of  Minnesota.     1902 

85  Minn.  279 

Writ  of  habeas  corpus  issued  from  the  Supreme  Court  on  relation 
of  Alfred  Scheffer,  directed  to  Philip  C.  Justus  as  sheriff  of  Ramsey 
count}".     Writ  discharged. 

Lewis,  J.  The  relator  was  arrested  under  a  criminal  warrant 
issued  out  of  the  Municipal  Court  of  the  city  of  St.  Paul  upon  the 
complaint  of  one  William  Harve}'',  which  charged  that  the  relator, 
as  the  agent  of  Scheffer  &  Rossum,  a  copartnership,  by  whom  he 
had  been  employed,  and  which  employment  he  had  volimtarily  left, 
did  wrongfully,  wilfully,  and  unlawfully  seek  to  prevent  and  hinder 
the  complainant  from  obtaining  work  with  another  firm. 

The  imprisonment  is  claimed  to  be  unlawful  for  the  following 
reasons:  That  Laws  1895,  c.  174,  is  unconstitutional,  because  it 
contravenes  the  provisions  of  sec.  2,  art.  1,  sec.  27,  art.  4,  and  sees. 
33  and  34,  art.  4,  of  the  state  constitution,  and  the  provisions  of  the 
fourteenth  amendment  of  the  federal  constitution. 

The  title  to  Laws  1895,  c.  174,  reads  as  follows: 

"An  act  to  prohibit  the  practice  of  blacklisting  and  the  coercing 
and  influencing  of  employees  by  their  employers." 

Sec.  1  prohibits  the  combination  of  two  or  more  emplojTrs  of 
labor  for  the  purpose  of  interfering  with  or  preventing  any  person, 
either  by  threats,  promises,  or  blacklisting,  from  procuring  employ- 
ment.    Sec.  2  reads  as  follows: 

"No  company,  corporation  or  partnership  in  this  state  shall 
authorize,  permit  or  allow  any  of  its  or  their  agents  to,  nor  shall  any 
of  its  or  their  agents  blacklist  any  discharged  employee  or  employees, 
or  by  word  or  writing  seek  to  prevent,  hinder  or  restrain  such  dis- 
charged employee  or  any  employee  wlio  may  have  voluntarily  left 
such  company's  or  person's  service  from  obtaining  employment 
from  any  other  person  or  company." 

Sec.  3  prohibits  employers  from  requiring  their  employees  not  to 
join  or  become  members  of  labor  organizations,  as  a  condition  of 
their  employment.  Sec.  4  declares  a  violation  of  the  act  a  misde- 
meanor. 

The  complaint  under  consideration  was  drawn  with  special  refer- 
ence to  the  i)rovisi()ns  of  sec.  2,  and  if  that  section,  standing  alone, 

'  See  also,  White  v.  Parks  &  Co.,  93  Ga.  033  (libelous  statement);  Hundley 
V.  Louisville  &  Nashville  Railroad  Co.,  105  Ky.  102  (false  statement  of  reason  for 
discharRe);  Rhodes  v.  Granby  Cotton  Mills,  87  S.  C.  18. 


I 


CHAP.  VIII]  THE    BLACK    LIST  477 

without  reference  to  the  provisions  of  sec.  3,  may  be  considered  vaHd, 
then  it  will  be  unnecessary  to  determine  the  validity  of  the  latter  sec- 
tion; and,  inasmuch  as  the  case  does  not  depend  upon  the  validity 
of  sec.  li,  wo  deem  it  wise  not  to  enter  into  a  discussion  of  the  proposi- 
tions ur^cd  by  relator.  Under  the  decisions  rjf  ihis  court  the  act  may 
be  consitlcrcd,  in  reference  to  its  constitutionality,  without  regard 
to  the  provisions  of  sec.  3.  In  other  words,  if  any  part  of  the  act  is 
valid,  the  whole  does  not  become  invalid  bccau-se  a  pcjrtifjii  of  it  is 
so  considered.  Rcimer  v.  Newel,  47  Minn.  237,  49  X.  W.  Htifj;  Sim- 
ard  V.  Sullivan,  71  Minn.  517,  74  X.  \V.  2.S0. 

E.xcluding  sec.  3,  then,  is  the  title  .sugK''stive  of  the  sul)ject- 
matter  of  the  act,  which  is  the  coercing  and  infiuencing  (jf  employees 
by  their  employers?  The  object  is  to  prohibit  sU(4i  coercion  and 
influence.  Conceding  that  the  word  "blacklist,"  as  u.sed  in  the  title, 
has  no  well-defined  meaning  in  the  law,  either  by  statute  or  judicial 
expression,  the  general  understanding  of  the  term  is  that  it  has  refer- 
ence to  the  practice  of  one  employer  presenting  to  another  the  names 
of  employees  for  the  purpose  of  furnishing  information  concerning 
their  standing  as  employees,  and,  so  understood,  it  may  liave  refer- 
ence to  the  subject  of  influencing  or  coercing  employees  or  employers. 
Sec.  2  deals  with  the  question  of  an  employer  influencing  or  coercing 
the  actions  of  an  employee  who  voluntarily  leaves  his  employ,  and 
is  therefore  within  the  sui)ject  suggested  by  the  title.  But  it  is 
urged  that  sec.  2  is  objectionable  to  the  provisions  of  the  constitu- 
tion upon  the  ground  that  it  is  class  or  special  legislation,  having 
application  only  to  corporations  or  partnerships,  as  distinguished 
from  individual  employers.  This  argument  is  based  upon  the  omis- 
sion from  the  first  part  of  the  section  of  the  word  "person."  While 
true  that  word  is  omitted  from  the  first  part  of  sec.  2,  yet  it  is  u.sed 
in  the  next  to  the  last  line  in  such  connection  that  it  becomes  neces- 
sary either  to  drop  the  word  out  of  the  section  entirely,  or  to  supply 
it  in  connection  with  the  words  "company,"  "corporation,"  or  "part- 
nership." Sec.  1  has  reference  to  all  employers,  without  regard  to 
whether  they  are  corporations,  partnerships,  or  individuals.  So 
with  sees.  3  and  4,  where  the  word  "person"  is  used. 

It  was  evidently  not  the  intention  of  the  legislature  to  discrim- 
inate in  sec.  2  against  an  individual  employer,  when  the  other  sec- 
tions of  the  act  are  plainly  made  applicable  to  individuals.  Em- 
ployers, as  distinguished  from  employees,  do  not  constitute  a  claims, 
within  the  constitutional  pr()hil)ition.  Those  acts  whicii  are  dedareil 
unlawful  by  the  statute  are  peculiar  to  employers  of  labor.  The 
act,  being  applicable  to  all  members  of  the  class,  is  not  invalid  be- 
cause limited  to  that  class.  Cameron  v.  Chicago,  M.  &  St.  P.  Ry. 
Co.,  63  Minn.  384,  G5  X.  W.  652.  We  therefore  hold  that  sec.  2  of 
the  act  applies  to  individuals  as  well  as  to  companies,  corporations, 
and  part  iiriships,  and  is  not  class  legislation. 


478  THE    BLACK   LIST  [CHAP.  VIII 


Again,  it  is  insisted  that  an  employer  of  labor  has  the  natural 
right,  under  the  constitution,  state  and  federal,  to  give  such  advice 
and  information  as  he  desires  with  respect  to  his  employees,  whether 
they  have  been  discharged  for  cause  or  without  cause,  or  whether 
they  have  voluntarily  left  the  employment.  This  leads  to  a  con- 
sideration of  what  the  offense  is,  as  set  forth  by  the  provisions  of 
sec.  2.  An  employee  who  voluntarily  leaves  his  employment  is  one 
who  has  the  right  to  do  so.  He  violates  no  contract  obligations. 
Presumably,  he  is  an  employee  in  good  standing,  and  le'aves  because 
it  is  to  his  advantage  so  to  do;  and  if  he  seeks  employment  else- 
where he  is  entitled  to  the  presumption  that  his  reputation  as  an 
employee  has  been  unharmed  by  the  fact  of  his  leaving.  The  fact 
that  such  an  emplo3'ee  voluntarily  abandons  his  employment  does 
not  give  the  employer  a  right  to  prejudice  his  employment  elsewhere. 
Under  such  circumstances,  a  communication  designed  to  prevent 
such  employment  is  presumably  a  reflection  upon  the  standing  of 
the  employee. 

It  is  no  answer  to  say  that  the  employer  may  have  cause  for  mak- 
ing such  communication;  that  it  may  be  to  the  advantage  of  the 
new  employer,  and  for  the  mutual  advantage  of  all  such  employers, 
to  have  notice  of  the  character  of  the  emplo^^ee.  If  there  is  any  valid 
reason  for  such  communication,  it  would  be  availal:»le  only  as  a  mat- 
ter of  defense.  The  act  does  not  attempt  to  interfere  with  the  right 
of  an  employer  to  discharge  an  employee  for  cause  or  without  cause. 
It  does  not  seek  to  prohibit  an  employer  from  communicating  to 
other  employers  the  nature  and  character  of  his  employees,  when 
the  facts  would  be  for  their  interest.  While  such  interference  by  an 
employer  is  not  expressly  characterized  as  malicious,  that  intent  is 
necessarily  implied.  It  is  the  purpose  of  this  law  to  protect  em- 
ployees in  the  enjoyment  of  those  natural  rights  and  privileges  guar- 
anteed them  b}^  the  constitution,  viz.,  the  right  to  sell  their  labor 
and  acquire  property  thereb3\  The  act  is  valid,  and  the  conviction 
must  be  sustained. 

Therefore  the  writ  is  quashed,  and  the  relator  is  remanded  to  the 
custody  of  the  sheriff  of  Ramsey  county.^ 

1  Accord:  St.  Louis  R.  R.  v.  Hixon,  126  S.  W.  (Texas)  338;  Joyce  v.  Great 
Northern  Ry.  Co.,  100  Minn.  225. 


CHAPTER  IX 
TIIK  IMOX  LABEL 

HETTEKMAN  BROS.  &  CO.  v.  POWERS 

CouKT  OF  Appeals  of  Kentucky.     1897 

102  Ky.  133 

Judge  Hazelrigg  dcli\('r((l  the  (ii)iiii()ii  of  the  (-(jurt. 
Tlic  appellants  were  inaniifaituicrs  and  (Icalcrs  in  (ij^ar.s  in  Louis- 
ville, Ky.,  and  without  rijilit  or  claim  of  lifilit  used  on  hoxes  of  cigars 
nianufaeturcd  and  sold  In-  them  the  blue  label  of  the  Cigar  Makers' 
International  Union  of  America,  [of  which  the  following  is  a  copy]: 

Sept.  1880 

Issued  by  Authority  of  the  Cigar  Makers'  International  Union  of  America. 

Union-Made  Cigars 

This  Certifies  that  the  Cigars  contained  in  this  box  have  been  made 
by  a  First-Class  Workman,  a  member  of  the  Cigar  Makers'  Inter-    Local 
national  Union  of  America,  an  organization  oi)posed  to  inferior  rat- 
shop.   Coolie,   Prison,   or  Filthy   Tenement-House   Workmanship, 
Therefore  we  reconunend  these  Cigars  to  all  smokers  throughout  the    Stamp 

world.  AH  infringements  upon  this  Label  will  be  punished 
[Seal]     according  to  law.  A.  Strasser,  President, 

C.  M.  I.  U.  of  America 

Thereupon  appellees,  Pow(>rs,  Kieffer,  antl  ^\'ol)price,  suing  for 
themselves  and  all  their  associates  and  fellow  meml)ers  in  the  Cigar 
^Makers'  International  Union  and  the  Cigar  Makers'  Protective 
Union  No.  32,  and  joining  these  two  organizations  also  as  plaintiffs, 
brought  this  action  to  prevent  this  alleged  wrongful  use  of  the  label. 

The  International  Union,  embracing,  according  to  the  petition, 

some members   and    the    local   union   some members   are 

voluntary,  unincorporated  labor  organizations,  composed  solely  of 
practical  cigar  makers.  They  are  working  men  who  do  not  own  the 
product  of  their  labor,  being  exclusively  wage  workers.  The  purpose 
of  these  unions,  as  said  in  the  petition,  is  generally  to  maintain  a 
high  standard  of  workmanship  and  .secure  fair  wages  to  cigar  makers, 
to  elevate  the  material,  moral  and  intellectual  welfare  of  the  mem- 
bership and  by  legitimate,  organized  effort  to  secure  laws  prohibiting 
labor  by  children  under  fourteen  years  of  age,  the  abolition  of  the 
''truck"  system,  the  tenement -house  cigar  manufacture  and  the 
manufacture  of  cigars  liy  pri.'^on  convict  lal)or.  Other  j^rai.^^eworthy 
objects  are  set  out  which  need  not  be  detailed.    It  is  further  averred 

479 


480  THE    UNION   LABEL  [CHAP.  IX 

that,  for  the  purpose  of  designating  the  cigars  made  by  members  of 
the  union  the  label  in  controversy  was  adopted  and  extensively  used 
as  a  trade-mark  or  certificate  of  identification.  And,  when  pasted 
on  the  outside  of  cigar  boxes  containing  cigars  made  by  members 
of  the  union,  it  is  a  guarantee  that  the  cigars  are  made  bj^  first-class 
workmen,  members  of  the  Cigar  Makers'  Union,  etc.,  etc.;  that 
because  the  members  receive  fair  wages  and  were  thus  able  to  furnish 
good  workmanship,  the  cigars  so  labeled  commanded  a  higher  price 
than  did  similarly  looking  cigars  not  so  labeled;  that  the  label  was, 
therefore,  a  source  of  great  profit  and  benefit  to  the  appellees  and 
other  members  of  the  union. 

The  appellants,  for  defense,  do  not  deny  the  use  of  the  label  as 
charged  in  the  petition,  but  it  is  insisted  by  them  that  this  label 
does  not  possess  any  of  the  elements  of  a  trade-mark;  that  the  ap- 
pellees are  engaged  in  no  trade,  having  nothing  to  sell,  and,  there- 
fore, nothing  to  protect  by  a  trade-mark;  that  none  of  them  are 
engaged  in  the  business  of  selling  cigars;  they  are  "simply  workmen 
emploj^ed  bj'  other  people  making  cigars,  first  b}^  one  person  and  then 
another,  and  those  persons  sell  the  cigars";  that  the  plaintiffs,  there- 
fore, "have  not  shown  any  propert}^  right  in  the  label  as  a  trade-mark 
or  otherwise."  Moreover,  that  the  membership  is  an  ever  chang- 
ing one,  constantly  varying  in  numbers,  composed  of  a  few  thousand 
today  and  many  thousand  tomorrow  —  "a  shifting  crowd."  That 
the  plaintiffs,  therefore,  are  not  qualified  to  sue  and  have  in  fact  no 
legal  rights  that  can  be  made  the  subject  of  a  suit. 

Moreover,  it  is  urged  that  the  plaintiffs  do  not  come  into  court 
with  clean  hands;  that  they  are  members  of  an  organization  lately 
engaged  in  boycotting  the  defendants  and  attempting  to  ruin  their 
business;  that  the  label  itself  cannot  be  approved,  either  in  law  or 
morals,  as  it  denounces  other  cigars  than  union-made  ones  as  inferior 
and  unwholesome,  and  the  product  of  filthy  tenement-houses  or  made 
by  coolies  and  convicts. 

And,  first,  we  may  admit  that  the  label  is  not  used  as  a  trade- 
mark in  the  ordinary  sense  of  that  word.  It  is  not  a  brand  put  on 
the  goods  of  the  owner  to  separate  or  distinguish  them  from  the 
goods  of  others,  but  we  cannot  agree  on  that  account  that  it  docs  not 
represent  a  valuable  right  which  may  be  the  subject  of  legal  pro- 
tection. Why  may  not  those  engaged  in  skillful  employment  so 
designate  the  result  of  their  labor  as  to  entitle  them  to  the  fruits  of 
their  skill  when  it  is  admittedly  a  source  of  pecuniary  profit  to  them? 
And  this,  though  they  may  not  own  the  property  itself? 

They  are  not,  it  is  true,  "in  business"  for  themselves  in  the  or- 
dinary sense,  but  they  have  property  rights  nevertheless.  They 
may  not  select  a  label  and  be  protected  in  its  use  apart  from  its  can- 
ncction  with  some  commodity;  but  they  not  only  select  it  in  this 
instance,  they  apply  it  to  property,  and  it  does  not  at  all  matter 
that  the  tangible  property  is  tliat  of  another. 


CHAP.  IX]  THE    UNION    LABEL  481 

In  order  to  get  tlie  benefit  of  tlie  superior  reputation  of  cigars 
made  by  them  the  appellees  select  and  apply  this  Ial>el  sm  a  diiitin- 
guishing  brand  or  mark.  And  it  would  be  strange  if  this  thing  of 
value,  this  certificate  of  good  workinanshiiJ  and  which  makes  the 
goods  made  by  them  sell  and  thus  increa.ses  demand  f(jr  their  work, 
\)e  entitled  to  no  protection,  becau.se  tho.se  nmking  the  selection  and 
application  are  not  business  men,  engaged  in  .selling  cigars  of  their 
own.  The  man  who  is  (Tiiployed  for  wages  is  as  nmch  a  business 
man  as  his  employer  in  that  larger  .sense  in  which  the  word  "busi- 
ness" has  come  to  be  used  by  statesmen  and  legislators. 

In  a  number  of  the  States  laws  have  been  enacted  giving  i)rotec- 
tion  to  the  men  engagetl  in  the  business  of  working  for  wages,  and 
their  right  of  organizing  and  selecting  ajipnjpriate  syml)ols  to  des- 
ignate the  results  of  their  handiwcjrk  is  recognized  and  ordained  to 
be  the  subject  of  lawful  protection  by  the  courts.  Thus  in  this  State, 
in  April,  1890,  a  law  was  enacted  by  the  General  Assembly  providing 
that  "every  union  or  association  of  workingmen  or  women  adopt- 
ing a  lal)el,  mark,  name,  l)rand  or  device,  intended  to  designate  the 
product  of  the  labor  of  the  members  of  such  union,  shall  file  duplicate 
copies  of  such  label  in  the  office  of  the  Secretary  of  State,  who  shall 
then  give  them  a  certificate  of  the  filing  thereof,  and  that  everj'  such 
union  may,  by  suit  in  any  of  the  courts  of  the  State,  proceed  to  en- 
join the  manufacture,  use,  displaj',  etc.,  of  counterfeits  or  imitations 
of  such  labels,  etc.,  on  goods  bearing  the  same,  and  that  the  court 
having  jurisdiction  of  the  parties  shall  grant  an  injunction  restrain- 
ing such  wrongful  manufacture,  use,  etc.,  of  such  label,"  etc. 

This  suit  was  fikni  before  the  adoption  of  this  statute,  but  it  in- 
dicates the  policy  of  the  law,  the  growth  or  expansion  and  perhaps  the 
creation  of  legal  remedies  hardly  known  to  ancient  trade-mark  law. 

The  learned  chancellor  below,  in  an  exhaustive  opinion  reviewing 
all  the  authorities,  among  other  things,  said,  and  we  can  say  it  no 
more  clearly,  that  "the  known  reputation  of  a  particular  kind  of 
skilled  labor  employed  in  the  development  of  a  particular  product  or 
class  of  products  determines,  to  a  large  degree,  the  value  or  price  of 
such  i)roducts  when  put  on  the  markets.  To  stamp  or  lal)el  a  com- 
modity as  the  product  of  a  particular  kind  or  class  of  skilled  lal)or 
determines  the  demand  for  and  the  price  of  such  pro<luct  or  com- 
modity. The  marketable  price  of  a  commodity  influences  the  scale 
of  wages  paid  for  its  manufacture.  The  higher  the  price,  the  higher 
the  wages  paid;  hence  it  is  indisputal)le  tliat  the  employee  whose 
skilled  lai)or,  in  the  production  of  a  particular  commodity,  creates  a 
demand  for  the  same,  that  secures  for  him  higher  renumerative 
wages,  has  as  definite  a  property  right  to  the  exclusive  use  of  a  partic- 
ular label,  sign,  syml)ol,  brand  or  device,  adopted  by  him  to  dis- 
tinguish and  charact<M-ize  said  conunodity  as  the  product  of  his 
skilled  labor,  as  the  merchant  or  owner  has  to  the  exclusive  u.'^e  of 
his  adopted  trade-mark  on  his  goods." 


482  THE   UNION   LABEL  [CHAP.  IX 

The  question  has  engaged  the  attention  of  a  number  of  the  courts 
of  this  country,  but  the  conclusions  reached  have  not  been  uniform. 

In  Weener,  etc.,  v.  Brayton,  25  N.  E.  R.,  46  (Mass.,  1890),  it  was 
held  that  an  injunction  against  the  wrongful  use  of  the  label  of  the 
International  Cigar  Makers'  Union  should  not  be  granted  because 
of  special  injury  to  plaintiffs,  who  were  officers  and  members  of  the 
union,  but  were  not  manufacturers  of  or  dealers  in  the  cigars  on 
which  such  label  is  used,  and  to  the  same  effect  are  the  cases  of  Cigar 
Makers'  Protective  Union  v.  Conhaim,  etc.,  40  INIinn.  243;  McVey 
V.  Brendel,  144  Pa.  St.  Rep.  235.  However,  a  number  of  the  courts 
have  held  otherwise.  In  the  case  of  Strasser  v.  Moonelis,  55  N.  Y. 
Sup.  Court,  197  (affirmed  in  Court  of  Appeals,  1888),  it  was  argued, 
as  it  is  here,  that  the  members  of  the  union  were  not  the  owners  or 
manufacturers  of  cigars,  but  merely  laborers  and  that,  therefore,  the 
label  did  not  come  within  the  settled  definition  of  a  trade-mark. 
The  court  said:  "It  is  needless  to  discuss  this  phase  of  the  case,  for 
the  right  to  the  exclusive  use  of  this  label  may  be  sustained,  although 
it  failed  to  be  a  trade-mark  in  the  precise  definition  of  the  term  as 
heretofore  used.  For  whether  we  call  the  property  right,  which  I 
believe  plaintiffs  have  in  the  label,  a  trade-mark,  or  by  another 
name,  is  a  matter  of  slight  import.  It  is  a  right  entitled  to  the  pro- 
tection of  a  court  of  equity,  on  the  same  principle  as  that  upon  which 
the  courts  have  based  the  right  to  protect  trade-marks  and  good 
will.  It  has  been  accepted  as  the  rule  that  the  court  proceeds  upon 
the  ground  that  a  person  has  a  valuable  interest  in  the  good  will  of 
his  trade  or  business,  and  that,  having  appropriated  to  himself  a 
particular  label  or  sign  or  trade-mark,  indicating,  to  those  who 
wish  to  give  him  their  patronage,  that  the  article  is  manufactured 
or  sold  b}'  him,  ...  he  is  entitled  to  protection  against  any  other 
person  who  attempts  to  pirate  on  the  good  will  of  his  friends  or 
customers  ...  by  sailing  under  his  flag,  without  his  authority  or 
his  consent." 

In  Kohn  v.  People,  149  111.  486,  the  court  upheld  the  constitu- 
tionality of  the  Trades  Union  Act  in  that  State,  and  as  the  court, 
independent  of  the  statute,  disposed  of  one  of  the  contentions  of 
counsel  in  the  case,  which  is  also  relied  on  here,  we  quote  in  part  its 
argument:  "It  is  next  objected  that  the  label,  an  imitation  and 
counterfeit  of  which  is  alleged  to  have  been  unlawfulh^  used  bj^  plain- 
tiff in  error,  could  not  have  been  riglitfully  adopted  either  as  a  trade- 
mark or  form  of  advertisement,  it  is  said  that  it  transgresses  the 
rules  of  morality  and  public  policy.  We  are  referred  to  the  rule  in 
respect  to  trade-marks  that  '  to  be  a  lawful  Irado-mark  the  emblem 
must  avoid  transgressing  the  rules  of  morality  and  public  policy.' 
(Brown  on  Trade-marks,  sec.  602.)  .  .  . 

"By  reference  to  the  label  heretofore  set  out  it  will  be  seen  that 
it  is  a  certificate,  signed  by  the  president  of  the  Cigar  Makers'  In- 
ternational Union  of  America,  certifying  that  the  cigars  contained 


CHAP.  IX]  THE    UNION'    LABEL  483 

in  the  box  upon  wliicli  it  wa.s  placed  were  '  made  l>y  a  first-class  work- 
man, a  in(!mber  of  the  Cif^ar  Makers'  International  Union  of  America, 
an  organization  oppcjscd  t(j  inferior,  rat-shop,  co(ilie,  prison  or  filthy 
tenement -liouse  workmanship.'  And  it  concludes:  '  Therefore, 
we  recommend  these  cigars  to  all  smokers  throughout  the  world.' 
The  purpose,  as  derived  from  the  label  itself,  is  to  .send  the  cigars 
out  to  the  public  with  the  assurance  that  they  are  made  by  a  first- 
cla.ss  workman,  who  belongs  to  an  order  oi^jjosed  to  the  inferior 
workmanship  designated.  It  will  l)e  ol>served  that  the  label  attiU'Ls 
no  other  manufacturer  of  cigars.  It  says  simply,  in  effect,  these 
cigars  are  not  the  product  (;f  an  inferior,  rat-shop,  coolie,  pri.son  or 
filthy  tenement -iiouse  workman.ship.  Can  it  be  .said  that  one  may 
not,  without  condeiiming  or  aspersing  the  product  of  other  manu- 
facturers, conunend  the  article  he  has  for  sale'.'  If  he  may  do  .so 
himself,  may  he  not  procure  the  certificate  of  others  as  to  the  quality 
of  th(>  article  he  puts  upon  the  market."  (State  v.  Ilagin,  0  Ind. 
Appeal,  107;  Carson  v.  Try,  39  Ted.  Kep.  777.) 

Further,  we  agree  with  the  learned  chancellor  that  there  is  no 
competent  evidence  that  the  appellees,  or  any  of  them,  have  been 
engaged  in  boycotting  the  appellants,  and  thus  deprived  themselves 
of  the  right  to  enforce  tiieir  legal  remedies  in  a  court  of  etpiity.  What- 
ever may  l>e  said  (jf  the  letters  and  circulars  looking  to  this  end,  and 
exhibited  in  the  proof,  it  is  not  shown  by  any  competent  proof  that 
the  appellees  instigated  or  had  aught  to  do  with  the  attempted  boy- 
cott. And,  moreover,  this  l)oycott,  which  seems  to  have  occurred 
in  1886,  did  not  in  any  way  grow  out  of  the  wrongful  use  of  thi^  label 
in  controversy.  On  the  whole  case,  therefore,  we  are  of  opinion  that 
the  law  may  be  justly  invoked  by  organized  labor  to  protect  from 
piracy  and  intrusion  the  fruits  of  its  skill  and  handiwork,  and  that 
brain  and  muscle  may  l^e  the  subjects  of  trade  law  rules  as  well  as 
tangible  property. 

The  judgment  is  affirmed.^ 

>  See  also,  Schmalz  v.  Wooley,  57  N.  .J.  Eq.  303  (accord). 

In  McVey  v.  Hrendcl,  144  Pa.  235,  whore  an  injunction  was  sought  to  restrain 
the  use  of  imitation  union  labels,  after  deciding  that  a  union  label  is  not  a  trade- 
mark and  therefore  not  entitled  to  protection  as  such  since  the  owner  is  neither 
a  manufacturer  nor  a  dealer,  Williams,  J.,  goes  on  to  say  (p.  247):  "I  come  now 
to  inquire  whether  the  ado[)tion  of  the  label  for  the  puri)oses  set  forth  in  the  bill 
gives  to  the  international  union  any  ground  f(jr  equitable  relief.  We  have  seen 
that  this  lal)el  is  not  a  trade-mark,  and  that  the  union  is  nijt  in  a  business  that  en- 
ables it  to  adopt  or  acquire  a  trade-mark.  Still  it  is  urged  that,  as  the  defendant 
was  about  to  use  an  imitation  of  tiie  l;d)pl.  he  should  l>e  enjoineil,  whether  the  lal)el 
is  a  trade-mark  or  not.  Hut  what  is  this  label,  and  why  should  it  be  protected? 
It  purports  to  be  '  issued  by  the  authority  of  the  Cigar  Makers'  International 
Union  of  America'  to  the  person  who  uses  it.  The  name  of  the  workman  who 
made  the  cigars  does  not  appear  upon  it,  nor  the  owner  or  location  of  the  shop 
at  which  they  are  made.  It  does  not  point  out  the  personal  or  the  local  origin 
or  ownership  of  the  goods  on  which  it  is  placed.  On  the  otlier  hand,  it  issues  to 
every  one  of  the  many  thousands  of  workmen  who  make  up  the  memlH'rship  of 
the  union,  and  it  certifies,  in  the  name  of  the  union,  that  the  cigars  in  the  Ixjx  on 


484  THE    UNION   LABEL  [CHAP.  IX 

PERKINS  V.  HEERT 

Court  of  Appeals  of  New  York.     1899 

158  N.  Y.  306 

Appeal  from  a  judgment  of  the  Appellate  Division  of  the  Supreme 
Court  in  the  first  judicial  department,  entered  June  29,  1896,  affirm- 
ing a  judgment  of  the  late  Superior  Court  of  the  city  of  New  York 
entered  upon  a  decision  awarding  the  plaintiff  a  perpetual  injunc- 
tion, with  damages  and  costs. 

which  it  is  placed  were  made  '  by  first-class  workman,  a  member  of  the  Cigar 
Makers'  International  Union.'  Who  this  first-class  workman  was,  where  he 
lived,  for  whom  he  worked,  the  label  does  not  tell.  He  is  indorsed  as  a  '  first- 
class  workman,'  because  he  is  '  a  member'  of  the  union.  As  to  all  who  are  not 
members,  the  label  proceeds  to  define  the  position  of  the  organization  that  issues 
it  by  describing  their  work  as  '  inferior  rat-shop,  cooly,  prison,  or  filthy  tenement- 
house  workmanship.'  The  label  then  proceeds  in  these  words:  '  Therefore  we 
recommend  these  cigars  to  all  smokers  throughout  the  world.'  The  value  of 
this  label  is  in  the  recommendation  and  the  reasons  given  for  it.  The  label  is 
thus  seen  to  be  something  quite  different  from  a  trade-mark  in  its  character,  its 
purpose,  and  the  manner  of  its  use,  viz.,  a  device  to  distinguish  between  union 
and  non-union  workmen,  and  to  discriminate  against  the  work  of  the  latter. 
It  saj'S  to  the  public  in  spirit  and  in  effect:  '  Buy  the  cigars  that  bear  this  label 
because  they  were  made  by  a  member  of  this  union.  Do  not  buy  those  not  bear- 
ing it  because  they  were  made  by  workmen  who  do  not  belong  to  us.  Such  cigars 
are  the  product  of  "  inferior  rat-shop,  cooly,  prison,  or  filthy  tenement-house 
workmanship." '  It  is  the  request  of  a  powerful  labor  organization  to  '  all  smokers 
throughout  the  world'  to  take  sides  with  it  in  its  contest  with  those  who  are  out- 
side of  its  membership  by  refusing  to  buj?^  the  work  of  such  persons.  It  is  an  at- 
tempt to  use  the  public  as  a  means  of  coercion  upon  them,  compelling  them  to 
unite  with  the  union  in  order  to  find  a  market  for  their  goods  or  their  labor.  Right 
here  let  us  distinguish  broadly  between  an  object  and  the  means  employed  to 
reach  it.  Organization  is  the  privilege,  perhaps  I  might  say  the  duty,  of  labor; 
and  an  organization  seeking  to  promote  '  the  mental,  moral,  and  phj^sical  wel- 
fare of  its  members,'  by  securing  fair  wages,  steady  work,  and  the  comforts  of 
home  for  them,  occupies  a  legitimate  field  of  usefulness,  and  is  capable  of  doing 
great  good  to  its  members  and  to  the  public.  The  Cigar  Makers'  Union  is  no 
doubt  seeking  to  do  such  a  work,  and  accomplishing  much  in  that  direction. 
What  we  are  now  considering  is  one  of  the  means  it  employs  to  increase  its  mem- 
bership, and  to  hurt  workmen  who  do  not  belong  to  it.  The  real  question  now 
before  us  is  whether  the  international  organization  of  workmen  shall  have  the 
help  of  a  court  of  equity  in  making  war  upon  all  cigar  makers  who  do  not  belong 
to  it,  and  in  driving  their  work  out  of  the  market  by  representing  it  as  coming 
from  inferior  rat-shops,  from  coolies,  pri.sons,  or  filthy  tenement-houses.  A 
'first-class  workman'  is  one  who  does  first-class  work,  whether  his  name  is  on 
the  rolls  of  any  given  society  or  not.  Filthiness  and  criminality  of  character  de- 
pend on  conduct,  not  on  membership  of  the  union.  Legitimate  competition 
rests  on  superiority  of  workmanship,  and  business  methods,  not  in  the  use  of 
vulgar  epithets  and  personal  denunciation.  When  the  Cigar  Makers'  Interna- 
tional Union  of  America  stigmatizes  those  who  do  not  Ijclong  to  it,  and  seeks  to 
induce  the  public  to  discriminate  against  them  and  their  work  by  covering  them 
with  opprobrious  epithets,  it  is  not  engaged  in  '  promoting  the  mental,  moral, 
and  physical  welfare  of  its  memberi?,'  but  is  trying  to  hurt  and  destroy  those 
who  do  not  choose  to  become  members.  While  the  courts  would  aid  the  former 
purpose  in  all  ways  within  their  power,  they  cannot  help  the  latter.    We  cannot 


I 


CHAP.  IX]  THE    UXION    LABEL  485 

Haight,  J.  This  action  was  hrouKlit  hy  the  plaintiff,  as  president 
of  the  Cigar  Makers'  International  I'nion  of  America,  under  the 
provisions  of  chapter  3S5  of  the  Laws  of  1SS9,  for  an  injunction  to 
restrain  the  defendants  from  using  an  alleged  imitation  of  the  union's 
label,  a  copy  of  which  had  been  filed  in  the  ofhce  of  the  secretary  of 
state  under  the  i>rovisions  of  that  law,  and  aLs(j  for  an  acc(;unfing 
for  profits. 

The  Cigar  Makers'  International  I'nion  of  America  is  a  volun- 
tary unincorporateil  association  consisting  of  a  large  number  of 
persons,  who  are  practical  cigar  makers  resiiling  in  the  United  States, 
with  its  principal  office  located  at  Buffalo.  The  purpose  of  their 
organization  is  the  promoting  of  the  mental,  moral  and  physical 
welfare  of  its  meml)ers  by  assisting  them  to  obtain  labor  at  remunera- 
tive wages  and  by  affording  them  pecuniary  aid  in  case  of  sickness, 
and  generally  to  maintain  a  high  standard  of  workmanship.  They 
adopted  a  Iai)el  upon  l)lue  pai)ei-  with  an  ornamental  border,  con- 
taining the  following: 

''Sept.,  1880. 
"Issued  by  authority  of  the  Cigar  Makers'  International  Union  of 
America.  Union  Made  Cigars.  This  certifies  that  the  cigars  con- 
tained in  this  box  have  been  made  by  a  first-class  workman,  a 
nieml)er  of  the  Cigar  Makers'  International  Union  of  America,  an 
organization  opposed  to  inferior  rat -shop,  coolie,  prison  or  filthy  tene- 
ment-house workmanship.  Therefore,  we  recommend  these  Cigars 
to  all  smokers  tiuoughout  the  world.  All  infringements  upon  this 
lal)el  will  l)e  punished  according  to  law. 

"G.  W.  PERKINS, 
''President  C.  M.  I.  U.  of  America:' 

justify  the  defondant's  conduct.  There  is  no  rule  of  morals  or  of  bu.sincss  upon 
which  he  can  defend  himself  in  the  preparation  and  use  of  spurious  labels.  But 
it  is  not  every  wrong  action  that  a  chancellor  will  enjoin,  because  the  purpose  of 
an  injunction  is  to  protect  the  plaintiff  in  the  exercise  and  enjoyment  of  a  clear 
legal  right,  for  an  infringement  of  which  the  law  does  not  afford  an  aderjuate 
remedy.  If,  therefore,  the  right  of  the  plaintifT  is  doubtful,  equity  will  withhold 
its  aid.  The  plaintiffs  in  this  case  have  no  trade-mark  to  protect,  and  no  right 
to  a  decree  resting  on  the  law  relating  to  trade-marks.  What  they  have  is  a  label 
which  recommends  the  purchase  of  cigars  made  by  union  men,  and  warns  against 
the  purchase  of  all  others  as  inferior  and  unwholesome  becau.se  made  in  '  rat- 
shops,  or  prisons,  or  by  coolies,  or  tenants  of  filthy  tenenient-houses.'  Their 
right  to  use  such  a  label  may  well  be  doul)ted,  whether  the  question  be  treated 
as  one  of  morals  or  of  law.  But  the  plaintitTs  come  into  a  court  of  equity,  and 
seek  to  enlist  the  conscience  of  a  chancellor  in  their  behalf.  They  must  come  with 
clean  hands,  with  a  conscionablc  regard  for  the  rights  of  others,  ready  to  do 
equity  on  their  part,  and  seeking  only  equity  at  the  hands  of  the  court.  They 
do  come  in  this  ca.se  with  the  avowed  purpose  to  do  harm  to  non-union  men;  to 
prevent  the  sale  of  their  work;  to  cover  them  with  opprobrium;  and  they  ask  a 
court  of  ecjuity  to  say  that  they  have  a  right  to  do  it.  We  decline  to  say  so.  The 
decree  of  the  court  below  is  reversed,  the  injunction  di.>v><olved,  and  the  bill  dis- 
missed. As  we  cannot  approve  the  coniluct  of  the  defendant,  we  shall  not  award 
him  costs,  but  direct  that  each  party  pay  the  costs  it  has  made,  and  that  the  fees 
of  the  master  be  paid  in  equal  parts  by  the  plaintiffs  and  the  defendant." 


486  THE    UNION   LABEL  [CHAP.  IX 

On  one  end  was  a  copj^  of  the  seal  of  the  union,  and  on  the  other 
end  a  place  was  reserved  for  a  local  stamp.  After  the  passage  of  the 
act  in  question,  they  caused  a  copy  of  this  label  to  be  filed  in  the 
office  of  the  secretary  of  state. 

The  defendants  are  cigar  manufacturers  in  the  city  of  New  York, 
and  are  not  members  of  the  union.  They  caused  to  be  printed  coun- 
terfeits of  the  blue  label  adopted  by  the  union,  and  pasted  it  upon 
boxes  containing  the  cigars  manufactured  by  them,  and  then  through 
their  agents  sold  their  cigars  to  the  public  with  the  intent,  as  has  been 
found,  to  defraud  the  union  and  the  purchasers  and  to  impose  upon 
the  public. 

The  case  was  tried  before  the  court  without  a  jury,  and  a  decision 
was  rendered  in  favor  of  the  plaintiff,  awarding  a  perpetual  injunc- 
tion against  the  defendants  and  for  damages  and  costs. 

It  is  claimed  on  behalf  of  the  appellants  that  the  label  had  been 
abandoned  by  the  union;  that  it  contained  matter  libelous  and  de- 
famatory, which  a  court  of  equity  would  not  protect,  and  that  the 
statute  in  question  had  been  repealed.  These  questions  were  fully 
considered  by  the  learned  Appellate  Division,  and  we  fully  concur 
with  the  views  of  that  court,  as  expressed  in  the  prevailing  opinion, 
with  reference  thereto.  The  only  questions  which  we  deem  it  neces- 
sary to  here  consider  are  those  raised  with  reference  to  the  con- 
stitutionality of  the  act. 

The  statute  is  as  follows:  "Sec.  1.  Every  union  or  association 
of  workingmen  or  women,  adopting  a  label,  mark,  name,  brand  or 
device,  intended  to  designate  the  products,  of  the  labor  of  members 
of  such  union  or  association  of  workingmen  or  women,  shall  in  order 
to  obtain  the  benefits  of  this  act,  file  duplicate  copies  of  such  label, 
mark,  name,  brand  or  device  in  the  office  of  the  secretary  of  state, 
who  shall,  under  his  hand  and  seal,  deliver  to  the  party  filing  or 
registering  the  same  a  certified  copy  and  a  certificate  of  the  filing 
thereof,  for  which  he  shall  receive  a  fee  of  one  dollar.  Sec.  2.  Every 
union  or  association  of  workingmen  or  women  adopting  such  label, 
mark,  name,  brand,  or  device,  and  filing  the  same,  as  specified  in 
the  first  section  of  this  act,  may  proceed,  by  suit  in  any  of  the  courts 
of  record  of  the  state,  to  enjoin  the  manufacture,  use,  display  or 
sale  of  counterfeits  or  colorable  imitations  of  such  label,"  etc. 

It  is  claimed  that  the  act  in  question  is  void  for  the  reason  that 
it  grants  an  exclusive  privilege  to  a  private  association  in  contra- 
vention of  the  provisions  of  the  Constitution.  (Art.  Ill,  sec.  18.) 
That  section  of  the  Constitution,  so  far  as  material,  provides  as  fol- 
lows: "The  legislature  shall  not  pass  a  private  or  local  bill  in  any 
of  the  following  cases,  .  .  .  granting  to  any  private  corporation, 
association  or  individual  any  exclusive  privilege,  immunity  or  fran- 
chise whatever.  .  .  .  The  legislalun*  shall  pass  g(>ncrul  laws  provid- 
ing for  the  cases  enumerated  in  this  section,  and  for  all  other  cases 
which  in  its  judgment  may  be  provided  for  by  general  laws." 


CHAP.  IX]  THE    UNION   LABEL  487 

It  will  be  observed  that  the  prohibition  contained  in  this  provi- 
sion of  the  Constitution  has  reference  to  private  or  local  bills,  and 
that  it  requires  the  legislature  to  pass  general  laws  providing  for 
the  cases  in  which  private  and  local  bills  are  prohibited.  The  ques- 
tion, therefore,  arises  as  to  whether  the  act  in  question  is  a  general 
law  or  a  private  and  local  bill.  It  is  entitled  *'An  act  for  the  better 
protection  of  skilled  labor,  and  for  the  registration  of  labels,  marks, 
names,  brands  or  devices  covering  the  products  of  such  labor  of 
associations  or  unions  of  workingmen  or  women."  There  is  nothing 
in  the  title  or  the  provisions  of  the  act  that  in  any  manner  limits  its 
provisions  to  any  particular  locality  of  the  state  or  to  any  designated 
association  or  union  of  workingmen  or  women.  Instead,  the  provi- 
sions are  all  general,  including  every  locality  in  the  entire  state,  and 
embracing  every  association  or  union  of  workingmen  or  women 
existing  or  that  may  be  thereafter  organized.  It  is  in  no  sense  local 
or  private,  but  is  in  every  sense  a  general  law.  .  .  . 

Finally,  it  is  insisted  that  the  act  is  unconstitutional  and  void, 
for  the  reason  that  it  is  contrary  to  public  policy,  in  that  it  unjustly 
discriminates  in  favor  of  the  labor  of  members  of  associations  or 
unions  as  against  that  of  non-union  workmen.  The  questions  arising 
under  this  contention  are  more  serious  and  require  deliberate  con- 
sideration. While  private  and  local  bills,  granting  to  a  private  cor- 
poration, association  or  individual  any  exclusive  privilege,  immunity 
or  franchise  whatever  is  prohibited,  the  Constitution  authorizes  the 
legislature  to  pass  general  laws  under  which  grants  may  be  made  to 
corporations,  associations  or  individuals  of  an  exclusive  privilege, 
immunity  or  franchise.  An  exclusive  privilege  or  franchise  is,  there- 
fore, authorized  if  obtained  under  general  laws.  Among  the  exclu- 
sive privileges  and  franchises  which  have  been  made  the  subject  of 
grants  to  private  corporations,  and  with  which  we  are  all  familiar, 
are  those  made  by  municipal  governments  under  the  authority  of 
general  laws  of  the  right  to  occupy  streets  or  highways  for  the  con- 
struction and  operation  of  street  railroads.  In  all  of  these  grants, 
there  is,  of  necessity,  discrimination.  Some  particular  corporation 
is  singled  out,  to  which  the  grant  is  given,  and  which,  thereafter, 
enjoys  the  exclusive  privilege  of  operating  its  railroad  through  the 
streets  or  highw^ays  specified  in  the  .grant;  but  the  grant  being  au- 
thorized, the  discrimination  is  not  unlawful.  It  is  not  contrary  to 
public  policy,  for  the  reason  that  the  Constitution  is  the  foundation 
upon  which  the  public  policy  of  the  state  is  based.  It  embodies  the 
policy  of  our  government.  It  authorizes  that  which  is  politic  and 
prohibits  that  which  is  deemed  impolitic.  Where,  therefore,  the 
Constitution  grants  or  authorizes  a  grant  through  legislative  action 
of  an  exclusive  privilege,  it  must  be  deemed  to  be  in  accord  with  the 
policy  of  the  state.  As  we  have  seen,  the  label  authorized  was  by  a 
general  and  not  a  local  act.  No  particular  association  or  union  has 
been  given  the  exclusive  privilege  of  adopting  a  label,  but  every  asso- 


488  THE    UNION   LABEL  [CHAP.  IX 

ciation  or  union  of  every  kind  of  workingmen  or  women  is  given  the 
right  to  adopt  its  own  label,  which  may  indicate  its  own  workman- 
ship. It  consequently  follows  that  whatever  discrimination  there 
may  be  is  authorized,  and,  therefore,  not  unjust,  and  that  the  privi- 
lege granted  under  the  general  law  is  in  accord  with  public  policy. 

We  are  aware  that  the  courts  of  sister  states  have  had  trouble  with 
similar  legislation  in  their  states;  that  very  much  has  been  written 
upon  the  subject  and  that  the  conclusions  reached  by  the  courts  in 
the  different  states  have  widel}^  differed.  We  have  not  thought  it 
profitable  to  enter  upon  an  elaborate  discussion  of  these  cases.  The 
questions  here  presented  arise  under  our  own  Constitution  and  are 
confined  within  narrow  limits.  We  have  not  overlooked  the  in- 
timation that  the  passage  of  this  act  was  procured  for  the  purpose 
of  enabling  union  labor  organizations  to  boycott  non-union  laborers 
and  to  deprive  them  of  the  legitimate  fruits  of  their  labors.  We  can- 
not, however,  assume  that  such  was  the  purpose  and  intent  of  the 
legislature  or  that  the  association  of  which  the  plaintiff  is  president 
will  resort  to  acts  which  are  unlawful  and  criminal.  The  act  allows 
the  members  of  the  union  to  send  the  products  of  their  labors  into 
the  markets  of  the  country  marked  in  such  a  way  as  to  indicate  the 
character  of  their  workmanship.  This  is  legitimate  and  proper.  It 
is  a  right  that  the  law  accords  to  every  manufacturer.  We  must 
assume,  therefore,  that  the  legislature  in  passing  the  act  had  in  view 
the  lawful  and  legitimate  purpose  and  that  they  did  not  contemplate 
that  the  provisions  of  the  act  might  be  used  for  illegitimate  purposes. 
These  views  render  it  unnecessary  to  consider  the  question  as  to 
whether  the  label  was  a  valid  trade-mark  at  common  law. 

Xo  question  is  raised  as  to  the  right  of  the  plaintiff  to  prosecute 
the  action  as  president  of  the  association. 

The  judgment  should  be  affirmed,  with  costs. 

All  concur. 

Judgment  affirmed.^ 

J  Accord:  Cohn  v.  People,  149  111.  486;  Tracy  v.  Banker,  170  Mass.  266;  State 
V.  Bishop,  128  Mo.  373;  United  Garment  Workers  of  America  v.  Davis,  74  Atl. 
(N.  J.)  306;   Cigar  Makers'  International  Union  v.  Lindner,  3  Ohio  Dec.  244. 


CHAPTER  X 
UNION  ORGANIZERS  IN  NON-UNION  FIELDS 

HITCHMAN  COAL  &  COKE  CO.  v.  MITCHELL 

Supreme  Court  of  the  United  States.     1917 

245  U.  S.  229 

Mr.  Justice  Pitney  delivered  the  opinion  of  the  court. 

This  was  a  suit  in  equity,  commenced  October  24,  1907,  in  the 
United  States  Circuit  (afterwards  District)  Court  for  the  Northern 
District  of  West  Virginia,  by  the  Hitchman  Coal  &  Coke  Co.,  a  cor- 
poration organized  under  the  laws  of  the  State  of  West  Virginia, 
against  certain  citizens  of  the  State  of  Ohio,  sued  individually  and 
also  as  officers  of  the  United  Mine  Workers  of  America.  Other  non- 
citizens  of  plaintiff's  state  were  named  as  defendants  but  not  served 
with  process.  Those  who  were  served  and  who  answered  the  bill 
were  T.  L.  Lewis,  vice-president  of  the  U.  M.  W.  A.  and  of  the  In- 
ternational Union,  U.  M.  W.  A.;  William  Green,  D.  H.  Sullivan, 
and  "George"  W.  Savage  (his  correct  Christian  name  is  Gwilym), 
respectively  president,  vice-president,  and  secretary-treasurer  of 
District  No.  6,  U.  M.  W.  A.;  and  A.  R.  Watkins,  John  Zelenka,  and 
Lee  Rankin,  respectively  president,  vice-president,  and  secretary- 
treasurer  of  Sub-district  No.  5  of  District  No.  6. 

Plaintiff  owns  about  5000  acres  of  coal  lands  situate  at  or  near 
Benwood,  in  Marshall  County,  West  Virginia,  and  within  what  is 
known  as  the  "Pan  Handle  District"  of  that  State,  and  operates  a 
coal  mine  thereon,  employing  between  200  and  300  men,  and  having 
an  annual  output,  in  and  before  1907,  of  about  300,000  tons.  .  .  . 
The  general  object  of  the  bill  was  to  obtain  an  injunction  to  restrain 
defendants  from  interfering  with  the  relations  existing  between 
plaintiff  and  its  employees  in  order  to  compel  plaintiff  to  "unionize" 
the  mine. 

A  restraining  order  having  been  granted,  followed  by  a  temporary 
injunction,  the  served  defendants  filed  answers.  ...  A  final  decree 
was  made  January  18,  1913,  granting  a  perpetual  injunction.  202 
Fed.  Rep.  512.  This  was  reversed  by  the  Circuit  Court  of  Appeals 
June  1,  1914  (214  Fed.  Rep.  685).  .  .  . 

The  District  Court  based  its  decision  upon  two  grounds :  (1)  That 
the  organization  known  as  the  United  Mine  Workers  of  America, 
and  its  branches,  as  conducted  and  managed  at  the  time  of  the  suit 
and  for  man}^  years  before,  was  a  common-law  conspiracy  in  un- 

489 


490  UNION    ORGANIZERS   IN   NON-UNION   FIELDS  [CHAP.  X 

reasonable  restraint  of  trade,  and  also  and  especially  a  conspiracy 
against  the  rights  of  non-union  miners  in  West  Virginia;  and  (2) 
That  the  defendants,  in  an  effort  to  compel  the  plaintiff  to  enter 
into  contractual  relations  with  the  union  relating  to  the  employ- 
ment of  labor  and  the  production  of  coal,  although  having  knowl- 
edge of  express  contracts  existing  between  plaintiff  and  its  emploj'ees 
which  excluded  relations  with  the  Union,  endeavored  by  unlawful 
means  to  procure  a  breach  of  these  contracts  by  the  employees. 

A  brief  recital  of  previous  transactions  between  the  parties  be- 
comes material.  The  Union  is  a  voluntary  and  unincorporated  asso- 
ciation which  was  organized  in  the  year  1890  in  the  States  of  Ohio 
and  Indiana,  and  afterwards  was  extended  to  other  States.  It  is 
made  up  of  national  or  "international,"  district,  sub-district,  and 
local  unions.  District  No.  6  comprises  the  coal  districts  of  Ohio  and 
the  Panhandle  of  West  Virginia.  Sub-district  No.  5  of  that  district 
comprises  five  counties  and  parts  of  counties  in  Ohio,  and  the  Pan- 
handle. 

The  answering  defendants  were  and  are  active  and  influential 
members  —  leaders  —  of  the  Union,  as  well  as  officers.  .  .  . 

From  1897  to  1906  what  were  known  as  joint  interstate  confer- 
ences were  held  annually  or  biennially  between  officials  of  the  union 
and  representatives  of  the  operators  in  the  "Central  Competitive 
Field"  (which  includes  Western  Pennsylvania,  Ohio,  Indiana,  and 
Illinois,  but  not  West  Virginia),  for  the  purpose  of  agreeing  upon 
the  scale  of  wages  and  the  conditions  of  emplo^nnent  in  that  field. 
In  addition  there  were  occasional  conferences  of  the  same  character 
affecting  other  States  and  districts. 

Plaintiff's  mine  is  within  the  territorial  limits  of  Sub-district  No. 
5  of  District  No.  6.  Coal-mining  operations  were  commenced  there 
in  the  early  part  of  the  year  1902,  and  the  mine  was  operated  "non- 
union" until  April,  1903,  when,  under  threats  from  the  union  officials, 
including  defendants  Watkins  and  Sullivan,  that  a  certain  unionized 
mine  in  Ohio,  owned  by  the  same  proprietors,  would  be  closed  down 
if  the  men  at  the  Hitchman  were  not  allowed  to  organize,  plaintiff 
consented  to  the  unionization  of  the  latter  mine.  .  .  . 

On  April  15th  [1906]  defendant  Zclenka,  vice-president  of  the 
sub-district,  visited  the  mine,  called  a  meeting  of  the  miners,  and 
addressed  them  in  a  foreign  tongue,  as  a  result  of  which  they  went 
on  strike  the  next  day,  and  the  mine  was  shut  down  until  the  12th 
of  June,  when  it  resumed  as  a  "non-union"  mine,  so  far  as  relations 
with  the  U.  M.  W.  A.  were  concerned.  .  .  . 

About  the  1st  of  June  a  self-appointed  connnittee  of  employees 
called  upon  plaintiff's  president,  stated  in  substance  that  they  could 
not  remain  longer  on  strike  because  they  were  not  receiving  benefits 
from  the  Union,  and  asked  upon  what  terms  they  could  return  to 
work.  They  were  told  that  they  could  come  back,  but  not  as  mem- 
bers of  the  United  Mine  Workers  of  America;    that  thenceforward 


CHAP.  X]  UNION    ORGANIZERS    IN    NON-UNION    FIELDS  491 

the  mine  would  be  run  non-union,  and  the  company  would  deal  with 
each  man  individually.  They  assented  to  this,  and  returned  to  work 
on  a  non-union  basis.  Mr.  Pickett,  the  mine  superintendent,  had 
charge  of  employing  the  men,  then  and  afterwards,  and  to  each 
one  who  applied  for  employment  he  explained  the  conditions,  which 
were  that  while  the  company  paid  the  wages  demanded  by  the  Union 
and  as  much  as  anybody  else,  the  mine  was  run  non-union  and  would 
continue  so  to  run;  that  the  company  would  not  recognize  the  United 
Mine  Workers  of  America;  that  if  an}'  man  wanted  to  become  a 
member  of  that  union  he  was  at  liberty  to  do  so;  but  he  could  not 
be  a  member  of  it  and  remain  in  the  employ  of  the  Hitchman  Co.; 
that  if  he  worked  for  the  company  he  would  have  to  work  as  a  non- 
union man.  To  this  each  man  employed  gave  his  assent,  understand- 
ing that  while  he  worked  for  the  company  he  must  keep  out  of  the 
Union. 

Since  January,  1908  (after  the  commencement  of  the  suit),  in 
addition  to  having  this  verbal  understanding,  each  man  has  been 
required  to  sign  an  employment  card  expressing  in  substance  the 
same  terms.  This  has  neither  enlarged  nor  diminished  plaintiff's 
rights,  the  agreement  not  being  such  as  is  required  by  law  to  be  in 
writing. 

Under  this  arrangement  as  to  the  terms  of  employment,  plaintiff 
operated  its  mine  from  June  12,  1906,  until  the  commencement  of 
the  suit  in  the  fall  of  the  following  year.  .  .  . 

All  coal  mines  in  the  Panhandle  and  elsewhere  in  West  Virginia, 
except  in  a  small  district  known  as  the  Kanawha  field,  were  run 
"non-union,"  while  the  entire  industry  in  (3hio,  Indiana,  and  Il- 
linois was  operated  on  the  "closed-shop"  basis,  so  that  no  man  could 
hold  a  job  about  the  mines  unless  he  was  a  member  of  the  United 
Mine  Workers  of  America.  Pennsylvania  occupied  a  middle  ground, 
only  a  part  of  it  being  under  the  jurisdiction  of  the  Union.  Other 
States  need  not  be  particularly  mentioned. 

The  unorganized  condition  of  the  mines  in  the  Panhandle  and 
some  other  districts  was  recognized  as  a  serious  interference  with 
the  purposes  of  the  Union  in  the  Central  Competitive  Field,  partic- 
ularly as  it  tended  to  keep  the  cost  of  production  low,  and,  through 
competition  with  coal  produced  in  the  organized  field,  rendered 
it  more  difficult  for  the  operators  there  to  maintain  prices  high 
enough  to  induce  them  to  grant  certain  concessions  demanded  by  the 
Union.  This  was  the  subject  of  earnest  and  protracted  discussion 
in  the  annual  international  convention  of  the  U.  M.  W.  A.  held  at 
Indianapolis,  Indiana,  in  the  month  of  January,  1907,  at  which 
all  of  the  answering  defendants  were  present  as  delegates  and  partici- 
pated in  the  proceedings.  The  discussion  was  based  upon  statements 
contained  in  the  annual  reports  of  John  Mitchell,  as  president  of  the 
Union  (joined  as  a  defendant  in  the  bill  but  not  served  with  process), 
and  of  defendant  Lewis,  as  vice-president,  respecting  the  causes  and 


492  UNION    ORGANIZERS   IN   NON-UNION   FIELDS  [CHAP.  X 

consequences  of  the  strike  of  1906,  and  the  pohcy  to  be  adopted  by 
the  Union  for  the  future.  In  these  reports  it  was  made  to  appear 
that  the  strike  had  been  caused  immediately  by  the  failure  of  the 
joint  convention  of  operators  and  miners  representing  the  central 
and  southwestern  competitive  fields,  held  in  the  early  part  of  the  year 
1906,  to  come  to  an  agreement  for  a  renewal  of  the  mining  scale; 
that  the  strike  was  widespread,  involving  not  less  than  400,000 
mine  workers,  was  terminated  by  "district  settlements,"  with  variant 
results  in  different  parts  of  the  territory  involved,  and  had  not  been 
followed  by  a  renewal  of  the  former  relations  between  the  operators 
and  miners  in  the  Central  Competitive  Field.  Another  result  of 
the  strike  was  a  large  decrease  in  the  membership  of  the  Union.  Two 
measures  of  relief  were  proposed:  first,  that  steps  be  taken  to  re- 
establish the  joint  interstate  conferences;  and  second,  the  organiza- 
tion of  the  hitherto  unorganized  fields,  including  the  Panhandle 
District  of  West  Virginia,  under  closed-shop  agreements,  with  all 
men  about  the  mines  included  in  the  membership  of  the  United 
Mine  Workers  of  America.  In  the  course  of  the  discussion  the  pur- 
pose of  organizing  West  Virginia  in  the  interest  of  the  unionized 
mine  workers  in  the  Central  Competitive  Field,  and  the  probability 
that  it  could  be  organized  only  by  means  of  strikes,  were  repeatedly 
declared  and  were  disputed  by  nobody.  All  who  spoke  advocated 
strikes,  differing  only  as  to  whether  these  should  be  nation-wide  or 
sectional.  .  .  .  Defendant  Green  took  part,  favoring  the  view  of 
Mr.  Lewis  that  strikes  should  be  treated  nationally  instead  of  sec- 
tionally.  In  the  course  of  his  remarks  he  said :  "I  say  to  you,  gentle- 
men, one  reason  why  I  opposed  the  policy  that  was  pursued  last 
year  was  because  over  in  Ohio  we  were  peculiarly  situated.  We 
had  West  Virginia  on  the  south  and  Pennsylvania  on  the  east,  and 
after  four  months  of  a  strike  in  eastern  Ohio  we  had  reached  the 
danger  line.  We  felt  keenly  the  competition  from  West  Virginia, 
and  during  the  suspension  our  mines  in  Ohio  chafed  under  the  ob- 
ject lesson  they  had.  They  saw  West  Virginia  coal  go  by,  train- 
load  after  train-load  passing  their  doors,  when  they  were  on  strike. 
This  coal  supplied  the  markets  that  they  should  have  had.  .  .  .  Now, 
something  must  be  done;  it  is  absolutely  necessary  to  protect  us 
against  the  competition  that  comes  from  the  unorganized  fields 
east  of  us."  .  .  . 

The  discussion  continued  during  three  days,  and  at  the  end  of  it 
the  report  of  a  committee  which  expressed  disagreement  with  Vice- 
President  Lewis'  opposition  to  sectional  settlements  and  recom- 
mended "a  continuation  in  the  future  of  the  same  wise,  conserva- 
tive business-like  policies"  that  had  been  pursued  by  President 
Mitchell,  was  adopted  by  a  viva  voce  vote. 

The  plain  effect  of  this  action  was  to  approve  a  policy  which,  as 
applied  to  the  concrete  case,  meant  tliat  in  order  to  relieve  the  union 
miners  of  Ohio,  Indiana,  and  Illinois  from  the  competition  of  the 


CHAP.  X]  UNION   ORGANIZERS   IN   NON-UNION    FIELDS  493 

cheaper  product  of  the  non-union  mines  of  West  Virginia,  the  West 
Virginia  mines  should  be  "organized"  by  means  of  strikes  local 
to  West  Virginia,  the  strike  benefits  to  be  paid  by  assessments  upon 
the  union  miners  in  the  other  States  mentioned,  while  they  remained 
at  work. 

This  convention  was  followed  by  an  annual  convention  of  Sub- 
district  5  of  District  No.  G,  held  in  the  month  of  March,  1907, 
at  which  defendants  Watkins  and  Rankin  were  present  as  president 
and  secretary  of  the  sub-district.  Defendant  Lewis,  as  National 
vice-president,  occupied  the  chair  during  several  of  the  sessions. 
Defendant  Zelenka  was  present  as  a  delegate,  and  also  Thomas 
Hughes,  who,  while  named  as  a  defendant  in  the  present  suit,  was 
not  served  with  process.  Watkins  and  Rankin  in  their  reports  recom- 
mended the  complete  unionization  of  the  mines  in  the  Panhandle 
counties,  with  particular  reference  to  the  Hitchman,  the  Glendale, 
the  Richland,  and  two  others;  and  as  a  result  it  was  resolved  "that 
the  Sub-district  officers,  together  with  the  District  officers,  be  au- 
thorized to  take  up  the  work  of  organizing  every  mine  in  the  Sub- 
district  as  quickly  as  it  can  be  done."  .  .  . 

The  evidence  renders  it  clear  that  Hughes  was  sent  into  the  Pan- 
handle to  organize  all  the  mines  there,  in  accordance  with  the  resolu- 
tion of  the  sub-district  convention.  The  bill  made  a  statement  of 
his  activities,  and  alleged  that  he  was  acting  as  an  organizer  for  the 
Union.  Defendants'  final  answers  made  a  complete  denial,  but  in 
this  are  contradicted  by  admissions  made  in  the  earlier  answers  and 
by  other  and  undisputed  evidence.  The  only  defendant  who  testified 
upon  the  subject  declared  that  Hughes  was  employed  by  District 
No.  6  as  an  organizer,  but  denied  that  he  had  power  or  authority  to 
shut  down  the  Hitchman  mine. 

He  arrived  at  that  mine  some  time  in  September,  1907,  and  re- 
mained there  or  in  that  vicinity  until  the  latter  part  of  October,  con- 
ducting a  campaign  of  organization  at  the  Hitchman  and  at  the 
neighboring  Glendale  and  Richland  mines. 

The  evidence  shows  that  he  had  distinct  and  timely  notice  that 
membership  in  the  Union  was  inconsistent  with  the  terms  of  em- 
ployment at  all  three  mines,  and  a  violation  of  the  express  provisions 
of  the  agreement  at  the  Hitchman  and  Glendale 

Having  unsuccessfully  applied  to  Koch  ^  and  McKinley  ^  for  their 
cooperation,  Hughes  proceeded  to  interview  as  many  of  the  men 
as  he  could  reach  and  to  hold  public  meetings  in  the  interest  of  the 
Union.  There  is  clear  and  uncontradicted  evidence  that  he  did  not 
confine  himself  to  mere  persuasion,  but  resorted  to  deception  and 
abuse.  In  his  public  speeches  he  employed  abusive  language  respect- 
ing Mr.  Pickett,  William  Daugherty,  and  Jim  Jarrett.^     He  proph- 

"  Mr.  Koch  was  the  general  manager  of  the  Hitchman  Co.;  Mr.  McKinley 
was  operating  a  neighboring  non-miion  mine.  —  Ed. 

*  Mr.  Pickett  was  superintendent  of  the  Hitchman  and  Glendale  mines,  and 


494  UNION   ORGANIZERS   IN   NON-UNION    FIELDS  [CHAP.  X 

esied,  in  such  a  way  that  ignorant,  foreign-born  miners,  such  as 
he  was  addressing,  naturally  might  believe  him  to  be  speaking  with 
knowledge,  that  the  wages  paid  by  the  Hitchman  would  be  reduced 
unless  the  mine  was  unionized.  The  evidence  as  to  the  methods 
he  employed  in  personally  interviewing  the  miners,  while  meagre, 
is  significant.  Myers,  a  Hitchman  miner,  testified:  "He  told  me 
that  he  was  a  good  friend  of  Mr.  Koch,  and  that  "Sir.  Koch  had 
nothing  against  having  the  place  organized  again.  He  said  he  was 
a  friend  of  his,  and  I  made  the  remark  that  I  would  ask  Mr.  Koch 
and  see  if  it  was  so;  and  he  said  no,  that  was  of  no  use  because  he 
was  telling  me  the  truth."  He  did  not  confine  his  attentions  to  men 
who  already  were  in  plaintiff's  emplo}',  but  in  addition  dissuaded 
men  who  had  accepted  employment  from  going  to  work. 

A  highly  significant  thing,  giving  character  to  Hughes'  entire 
course  of  conduct,  is  that  while  his  solicitation  of  the  men  was  more 
or  less  public,  as  necessarily  it  had  to  be,  he  was  careful  to  keep 
secret  the  number  and  the  names  of  those  who  agreed  to  join  the 
Union.  Myers,  being  asked  to  allow  his  name  to  be  entered  on  a 
book  that  Hughes  carried,  tried  to  see  the  names  already  entered, 
"but  he  would  not  show  anything;  he  told  me  he  had  it,  and  I  asked 
him  how  many  names  was  on  it,  and  he  said  he  had  about  enough 
to  '  crack  off.'  "  To  Stewart,  another  Hitchman  miner,  he  said  "he 
was  forming  a  kind  of  secret  order  among  the  men;  he  said  he  had  a 
few  men  —  he  did  not  state  the  number  of  them  —  and  he  said  each 
man  was  supposed  to  give  him  so  much  dues  to  keep  it  going,  and 
then  he  said  after  he  got  the  majority  he  would  organize  the  place."  . . . 

In  short,  at  the  time  the  bill  was  filed,  defendants,  although  hav- 
ing full  notice  of  the  terms  of  employment  existing  between  plaintiff 
and  its  miners,  were  engaged  in  an  earnest  effort  to  subvert  those 
relations  without  plaintiff's  consent,  and  to  ahenate  a  sufficient 
number  of  the  men  to  shut  down  the  mine,  to  the  end  that  the  fear 
of  losses  through  stoppage  of  operations  might  coerce  plaintiff  into 
"recognizing  the  union"  at  the  cost  of  its  own  independence.  .  .  . 

What  are  the  legal  consequences  of  the  facts  that  have  been  de- 
tailed? 

That  the  plaintiff  was  acting  within  its  lawful  rights  in  employ- 
ing its  men  only  upon  terms  of  continuing  non-membership  in  the 
United  Mine  Workers  of  America  is  not  open  to  question.  .  .  .  The 
same  liberty  which  enables  men  to  form  unions,  and  through  the 
union  to  enter  into  agreements  with  employers  willing  to  agree, 
entitles  other  men  to  remain  independent  of  the  union  and  other 
employers  to  agree  with  them  to  employ  no  man  who  owes  any  al- 
legiance or  obligation  to  the  union.   .  .  . 

it  was  with  him  that  the  minors  made  their  agreements  to  refrain  from  mem- 
bership in  the  Union;  DauKherty  and  .Jarrett  were  miners  at  the  Hitchman,  and 
had  been,  respectively,  president  and  finaneial  secretary  of  the  h)cal  union  at 
the  time  of  the  1906  strike,  when  the  local  deserted  tlu;  U.  M.  W.  A. 


CHAP.  X]  UNION   ORGANIZERS   IN    NON-UNION   FIELDS  495 

Plaintiff,  having  in  the  exercise  of  its  undoubted  rights  estabhshed 
a  working  agreement  between  it  and  its  employees,  with  the  free 
assent  of  the  latter,  is  entitled  to  be  protected  in  the  enjoyment  of 
the  resulting  status,  as  in  any  other  legal  right.  That  the  employ- 
ment was  "at  will,"  and  terminable  by  either  party  at  any  time,  is 
of  no  consequence.  .  .  . 

In  short,  plaintiff  was  and  is  entitled  to  the  good  will  of  its 
employees,  precisely  as  a  merchant  is  entitled  to  the  good  will  of  his 
customers  although  they  are  under  no  obligation  to  continue  to  deal 
with  him.  The  value  of  the  relation  lies  in  the  reasonable  probability 
that  ])y  properly  treating  its  employees,  and  paying  them  fair  wages, 
and  avoiding  reasonable  grounds  of  complaint,  it  will  be  able  to  re- 
tain them  in  its  employ,  and  to  fill  vacancies  occurring  from  time 
to  time  by  the  employment  of  other  men  on  the  same  terms.  The 
pecuniary  value  of  such  reasonable  probabilities  is  incalculably  great, 
and  is  recognized  by  the  law  in  a  variety  of  relations.  .  .  . 

The  right  of  action  for  persuading  an  employee  to  leave  his  em- 
ployer is  universally  recognized  —  nowhere  more  clearly  than  in 
West  Virginia  —  and  it  rests  upon  fundamental  principles  of  gen- 
eral application,  not  upon  the  English  statute  of  laborers.  Thacker 
Coal  Co.  V.  Burke,  59  W.  Va.  253,  255;  8  Ann.  Cas.  885,  886;  Walker 
V.  Cronin,  107  Mass.  555,  567;  Angle  v.  Chicago,  St.  Paul,  etc.,  Ry. 
Co.,  151  U.  S.  1,  13;  Noice,  Adm'x,  v.  Brown,  39  N.  J.  L.  569,  572. 

We  turn  to  the  matters  set  up  by  way  of  justification  or  excuse 
for  defendants'  interference  with  the  situation  existing  at  plaintiff's 
mine. 

The  case  involves  no  question  of  the  rights  of  employees.  De- 
fendants have  no  agenc}''  for  plaintiff's  employees,  nor  do  they  assert 
any  disagreement  or  grievance  in  their  behalf.  In  fact,  there  is 
none;  but,  if  there  were,  defendants  could  not,  without  agency,  set 
up  any  rights  that  employees  might  have.  The  right  of  the  latter 
to  strike  would  not  give  to  defendants  the  right  to  instigate  a  strike. 
The  difference  is  fundamental.  .  .  . 

Defendants  set  up,  by  way  of  justification  or  excuse,  the  right  of 
workingmen  to  form  unions,  and  to  enlarge  their  membership  by 
inviting  other  workingmen  to  join.  The  right  is  freely  conceded, 
provided  the  objects  of  the  union  be  proper  and  legitimate,  which 
we  assume  to  be  true,  in  a  general  sense,  with  respect  to  the  Union 
here  in  question.  Gompers  v.  Bucks  Stove  &  Range  Co.,  221  U.  S. 
418,  439.  The  cardinal  error  of  defendants'  position  lies  in  the  as- 
sumption that  the  right  is  so  absolute  that  it  may  be  exercised  under 
any  circumstances  and  without  any  qualification;  whereas  in  truth, 
like  other  rights  that  exist  in  civilized  society,  it  must  always  be 
exercised  with  reasonable  regard  for  the  conflicting  rights  of  others. 
Brennan  v.  United  Hatters,  73  N.  J.  L.  729,  749.  .  .  . 

Now,  assuming  defendants  were  exercising,  through  Hughes,  the 
right  to  invite  men  to  join  their  Union,  still  they  had  plain  notice 


496  UNION   ORGANIZERS   IN    NON-UNION   FIELDS  [CHAP.  X 

that  plaintiff's  mine  was  run  "non-union,"  that  none  of  the  men 
had  a  right  to  remain  at  work  there  after  joining  the  Union,  and 
that  the  observance  of  this  agreement  was  of  great  importance  and 
value  both  to  plaintiff  and  to  its  men  who  had  voluntaril}^  made 
the  agreement  and  desired  to  continue  working  under  it.  Yet  de- 
fendants, far  from  exercising  an}^  care  to  refrain  from  unnecessarily- 
injuring  plaintiff,  deliberately  and  advisedly  selected  that  method 
of  enlarging  their  membership  which  would  inflict  the  greatest  in- 
jury upon  plaintiff  and  its  loyal  employees.  Every  Hitchman  miner 
who  joined  Hughes'  "secret  order"  and  permitted  his  name  to  be 
entered  upon  Hughes'  list  was  guilty  of  a  breach  of  his  contract  of 
employment  and  acted  a  lie  whenever  thereafter  he  entered  plain- 
tiff's mine  to  work.  Hughes  not  only  connived  at  this,  but  must 
be  deemed  to  have  caused  and  procured  it,  for  it  was  the  main  fea- 
ture of  defendants'  plan,  the  sine  qua  non  of  their  programme. 
Evidently  it  was  deemed  to  be  necessary,  in  order  to  "organize  the 
Panhandle  by  a  strike  movement,"  that  at  the  Hitchman,  for  ex- 
ample, man  after  man  should  be  persuaded  to  join  the  Union,  and 
having  done  so  to  remain  at  work,  keeping  the  employer  in  ignorance 
of  their  number  and  identity,  until  so  many  had  joined  that  by  stop- 
ping work  in  a  bod}^  they  could  coerce  the  employer  and  the  remain- 
ing miners  to  "organize  the  mine,"  that  is,  to  make  an  agreement 
that  none  but  members  of  the  Union  should  be  employed,  that  terms 
of  employment  should  be  determined  by  negotiation  not  with  the 
employees  but  with  union  officers  —  perhaps  residents  of  other 
States  and  employees  of  competing  mines  —  and  that  all  questions 
in  controversy  between  the  mine  operator  and  the  miners  should 
likewise  be  settled  with  outsiders. 

True,  it  is  suggested  that  under  the  existing  contract  an  employee 
was  not  called  upon  to  leave  plaintiff's  employ  until  he  actually 
joined  the  Union,  and  that  the  evidence  shows  only  an  attempt  by 
Hughes  to  induce  the  men  to  agree  to  join,  but  no  attempt  to  in- 
duce them  to  violate  their  contract  by  failing  to  withdraw  from 
plaintiff's  employment  after  actually  joining.  But  in  a  court  of 
ecjuit}^,  which  looks  to  the  substance  and  essence  of  things  and  dis- 
regards matters  of  form  and  technical  nicety,  it  is  sufficient  to  say 
that  to  induce  men  to  agree  to  join  is  but  a  mode  of  inducing  them  to 
join,  and  that  when  defendants  "had  sixty  men  who  had  signed  up 
or  agreed  to  join  the  organization  at  Hitchman,"  and  were  "going 
to  shut  the  mine  down  as  soon  as  they  got  a  few  more  men,"  the 
sixty  were  for  practical  purposes,  and  therefore  in  the  sight  of  equity, 
already  members  of  the  Union,  and  it  needed  no  formal  ritual  or 
taking  of  an  oath  to  constitute  them  such;  their  uniting  with  the 
Union  in  the  plan  to  subvert  the  system  of  employment  at  the  Hitch- 
man mine,  to  which  they  had  voluntarily  agreed  and  upon  which 
their  employer  and  their  fellow  employees  were  relying,  was  sufficient. 

But  the  facts  render  it  plain  that  what  the  defendants  were  en- 


CHAP.  X]  UNION    ORGANIZERS   IN    NON-UNION    FIELDS  497 

deavoring  to  do  at  the  Hitchman  mine  and  neighboring  mines  can- 
not be  treated  as  a  bona  fide  effort  to  enlarge  the  membership  of  the 
Union.  There  is  no  evidence  to  show,  nor  can  it  be  inferred,  that 
defendants  intended  or  desired  to  have  the  men  at  these  mines  join 
the  Union,  unless  they  could  organize  the  mines.  Without  this, 
the  new  members  would  be  added  to  the  number  of  men  compet- 
ing for  jobs  in  the  organized  districts,  while  non-union  men  would 
take  their  places  in  the  Panhandle  mines.  Except  as  a  means  to  the 
end  of  compelling  the  owners  of  these  mines  to  change  their  method 
of  operation,  the  defendants  were  not  seeking  to  enlarge  the  union 
membership. 

In  any  aspect  of  the  matter,  it  cannot  be  said  that  defendants 
were  pursuing  their  object  by  lawfid  means.  The  question  of  their 
intentions  —  of  their  bona  fides  —  cannot  be  ignored.  It  enters 
into  the  question  of  malice.  As  Bowen,  L.  J.,  justly  said,  in  the 
Mogul  Steamship  Case,  23  Q.  B.  Div.  613,  "Intentionally  to  do  that 
which  is  calculated  in  the  ordinary  course  of  events  to  damage,  and 
which  does,  in  fact,  damage  another  in  that  other  person's  property 
or  trade,  is  actionable  if  done  without  just  cause  or  excuse."  And 
the  intentional  infliction  of  such  damage  upon  another,  without 
justification  or  excuse,  is  malicious  in  law.  Bitterman  v.  Louisville 
&  Nashville  R.  R.  Co.,  207  U.  S.  205,  223;  Brennan  v.  United  Hat- 
ters, 73  N.  J.  L.  729,  744  et  seq.,  and  cases  cited.  Of  course,  in  a 
court  of  equity,  when  passing  upon  the  right  of  injunction,  damage 
threatened,  irremediable  by  action  at  law,  is  equivalent  to  damage 
done.  And  we  cannot  deem  the  proffered  excuse  to  be  a  "just  cause 
or  excuse,"  where  it  is  based,  as  in  this  case,  upon  an  assertion  of 
conflicting  rights  that  are  sought  to  be  attained  by  unfair  methods, 
and  for  the  very  purpose  of  interfering  with  plaintiff's  rights,  of  which 
defendants  have  full  notice.  .  .  . 

There  is  no  reason  to  doubt  that  if  defendants  had  been  actuated 
by  a  genuine  desire  to  increase  the  membership  of  the  Union  without 
unnecessar}''  injury  to  the  known  rights  of  plaintiff,  they  would 
have  permitted  their  proselytes  to  withdraw  from  plaintiff's  employ 
when  and  as  they  became  affiliated  with  the  Union  —  as  their  con- 
tract of  employment  required  them  to  do  —  and  that  in  this  event 
plaintiff  would  have  been  able  to  secure  an  adequate  supply  of  non- 
union men  to  take  their  places.  It  was  with  knowledge  of  this, 
and  because  of  it,  that  defendants,  through  Hughes  as  their  agent, 
caused  the  new  members  to  remain  at  work  in  plaintiff's  mine  until  a 
sufficient  number  of  men  should  be  persuaded  to  join  so  as  to  bring 
about  a  strike  and  render  it  difficult  if  not  practically  impossible  for 
plaintiff  to  continue  to  exercise  its  undoubted  legal  and  constitu- 
tional right  to  run  its  mine  "non-union." 

It  was  one  thing  for  plaintiff  to  find,  from  time  to  time,  com- 
paratively small  numbers  of  men  to  take  vacant  places  in  a  going 
mine,  another  and  a  much  more  difficult  thing  to  find  a  complete 


498  UNION    ORGANIZERS    IN   NON-UNION   FIELDS  [CHAP.  X 

gang  of  new  men  to  start  up  a  mine  shut  down  by  a  strike,  when 
there  might  be  a  reasonable  apprehension  of  violence  at  the  hands 
of  the  strikers  and  their  sympathizers.  The  disordered  condition 
of  a  mining  town  in  time  of  strike  is  matter  of  common  knowledge.  .  .  . 
Defendants'  acts  cannot  be  justified  by  any  analogy  to  competi- 
tion in  trade.  They  are  not  competitors  of  plaintiff;  and  if  they 
were  their  conduct  exceeds  the  bounds  of  fair  trade.  Certainly,  if 
a  competing  trader  should  endeavor  to  draw  custom  from  his  rival, 
not  by  offering  better  or  cheaper  goods,  employing  more  competent 
salesmen,  or  displaying  more  attractive  advertisements,  but  by 
persuading  the  rival's  clerks  to  desert  him  under  circumstances 
rendering  it  difficult  or  embarrassing  for  him  to  fill  their  places, 
any  court  of  equity  would  grant  an  injunction  to  restrain  this  as 
unfair  competition. 

Upon  all  the  facts,  we  are  constrained  to  hold  that  the  purpose 
entertained  by  defendants  to  luring  about  a  strike  at  plaintiff's  mine 
in  order  to  compel  plaintiff,  through  fear  of  financial  loss,  to  con- 
sent to  the  unionization  of  the  mine  as  the  lesser  evil,  was  an  unlaw- 
ful purpose,  and  that  the  methods  resorted  to  by  Hughes  —  the 
inducing  of  employees  to  unite  with  the  Union  in  an  effort  to  subvert 
the  system  of  employment  at  the  mine  by  concerted  breaches  of  the 
contracts  of  employment  known  to  be  in  force  there,  not  to  mention 
misrepresentation,  deceptive  statements,  and  threats  of  pecuniary 
loss  communicated  by  Hughes  to  the  men  —  were  unlawful  and 
malicious  methods,  and  not  to  be  justified  as  a  fair  exercise  of  the 
right  to  increase  the  membership  of  the  Union. 

There  can  be  no  question  that  plaintiff  was  threatened  with  dan- 
ger of  an  immediate  strike  as  a  result  of  the  activities  of  Hughes.  .  .  . 
That  the  damage  resulting  from  a  strike  would  be  irremediable  at 
law  is  too  plain  for  discussion. 

Therefore,  upon  the  undisputed  facts  of  the  case,  and  the  indubi- 
table inferences  from  them,  plaintiff  is  entitled  to  relief  by  injunc- 
tion. .  .  . 

As  against  the  answering  defendants,  plaintiff's  right  to  an  in- 
junction is  clear;  as  to  the  others  named  as  defendants,  but  not 
served  with  process,  the  decree  is  erroneous,  as  already  stated. 

Respecting  the  sweep  of  the  injunction,  we  differ  somewhat  from 
the  result  reached  by  the  District  Court. 

80  far  as  it  restrains — (1)  Interfering  or  attempting  to  inter- 
fere with  plaintiff's  employees  for  the  purpose  of  unionizing  plain- 
tiff's mine  without  its  consent,  by  representing  or  causing  to  be 
represented  to  any  of  plaintiff's  employees,  or  to  any  person  who 
might  become  an  employee  of  plaintiff,  that  such  person  will  suffer 
or  is  likely  to  suffer  some  loss  or  troul)le  in  continuing  in  or  in  (Altering 
the  employment  of  plaintiff,  by  reason  of  plaintiff  not  recognizing 
the  Union,  or  because  plaintiff  runs  a  non-union  mine;  (2)  Interfer- 
ing or  attempting   to   interfere  with    plaintiff's  (Mnjiloye(\s  for  the 


CHAP.  X]  UNION    ORGANIZERS   IN    NON-UNION    FIELDS  499 

purpose  of  unionizing  the  mine  without  plaintiff's  consent,  and  in 
aid  of  such  purpose  knowingly  and  wilfully  bringing  about  the  break- 
ing by  plaintiff's  employees  of  contracts  of  service  known  at  the 
time  to  exist  with  plaintiff's  present  and  future  employees;  (3) 
Knowingly  and  wilfully  enticing  plaintiff's  employees,  present  or 
future,  to  leave  plaintiff's  service  on  the  ground  that  plaintiff  does 
not  recognize  the  United  Mine  Workers  of  America  or  runs  a  non- 
union mine,  etc.;  (4)  Interfering  or  attempting  to  interfere  with 
plaintiff's  emplo3'ees  so  as  knowingly  and  wilfully  to  bring  about 
the  breaking  by  plaintiff's  employees,  present  and  future,  of  their 
contracts  of  service,  known  to  the  defendants  to  exist,  and  especially 
from  knowingly  and  wilfully  enticing  such  employees,  present  or 
future,  to  leave  plaintiff's  service  without  plaintiff's  consent;  (5) 
Trespassing  on  or  entering  upon  the  grounds  and  premises  of  plain- 
tiff or  its  mine  for  the  purpose  of  interfering  therewith  or  hindering 
or  obstructing  its  business,  or  with  the  purpose  of  compelling  or  in- 
ducing, by  threats,  intimidation,  violent  or  abusive  language,  or 
persuasion,  any  of  plaintiff's  employees  to  refuse  or  fail  to  perform 
their  duties  as  such;  and  (6)  Compelling  or  inducing  or  attempting 
to  compel  or  induce,  by  threats,  intimidation,  or  abusive  or  violent 
language,  any  of  plaintiff's  employees  to  leave  its  service  or  fail  or 
refuse  to  perform  their  duties  as  such  employees,  or  compelling  or 
attempting  to  compel  by  like  means  any  person  desiring  to  seek  em- 
ployment in  plaintiff's  mine  and  works  from  so  accepting  employ- 
ment therein;  —  the  decree  is  fully  supported  by  the  proofs.  But 
it  goes  further,  and  awards  an  injunction  against  picketing  and 
against  acts  of  physical  violence,  and  we  find  no  evidence  that  either 
of  these  forms  of  interference  was  threatened.  The  decree  should 
be  modified  by  eliminating  picketing  and  physical  violence  from  the 
sweep  of  the  injunction,  but  without  prejudice  to  plaintiff's  right 
to  obtain  an  injunction  hereafter  against  these  forms  of  interference 
if  proof  shall  be  produced,  either  in  proceedings  supplemental  to  this 
action  or  in  an  independent  action,  that  such  an  injunction  is  needed. 
The  decree  of  the  Circuit  Court  of  Appeals  is  reversed,  and  the  decree 
of  the  District  Court  is  modified  as  abvoe  stated,  and  as  so  inodified 
it  is  affir7ned,  and  the  cause  is  remanded  to  the  District  Court  for 
further  proceedings  in  conformity  with  this  opinion. 

Mr.  Justice  Brandeis,  dissenting. 

This  suit  was  begun  October  24,  1907.  The  Hitchman  Coal  & 
Coke  Co.,  plaintiff  below,  is  the  owner  of  a  coal  mine  in  West  Vir- 
ginia. John  Mitchell  and  nine  others,  defendants  below,  were  then 
the  chief  executive  officers  of  the  United  Mine  Workers  of  America 
and  of  its  district  and  sub-district  organizations  having  "jurisdiction" 
over  the  territory  in  which  plaintiff's  mine  is  situated;  and  were 
sued  both  individually  and  as  such  officers.  The  mine  had  been 
"unionized"  about  three  years  prior  to  April  16,  1906;    and  until 


500  UNION    ORGANIZERS   IN    NON-UNION   FIELDS  [CHAP,  X 

about  that  date  was  operated  as  a  "union"  mine,  under  a  collective 
agreement  with  a  local  union  of  the  United  Mine  Workers  of  America. 
Then  a  strike  was  declared  by  the  union;  and  a  short  shut-down  fol- 
lowed. While  the  strike  so  declared  was  still  in  force,  as  the  bill 
alleges,  the  company  reopened  the  mine  as  a  closed  non-union  mine. 
Thereafter  persons  applying  for  work  were  required  as  a  condition 
of  obtaining  employment  to  agree  that  they  would  not,  while  in  the 
service  of  the  company,  be  a  member  of  the  union,  and  if  they  joined 
the  union  would  withdraw  from  the  company's  employ.^ 

Alleging  that  efforts  were  being  made  illegally  to  unionize  its 
mine  "without  its  consent,"  the  company  brought  in  the  United 
States  Circuit  (now  District)  Court  for  the  Northern  District  of 
West  Virginia  this  suit  to  enjoin  such  efforts.  District  Judge  Day- 
ton granted  a  restraining  order  upon  the  filing  of  the  bill ;  .  .  .  and 
on  January  18,  1913,  a  decree  was  entered  for  a  perpetual  injunction 
substantiall}^  in  the  form  of  the  restraining  order.  202  Fed.  Rep. 
512.  .  .  . 

The  Circuit  Court  of  Appeals,  reversing  the  decree  of  the  District 
Court,  held  that  the  United  Mine  Workers  of  America  was  not  an 
unlawful  organization  under  the  laws  of  West  Virginia,  that  its 
validity  under  the  Federal  Anti-Trust  Act  could  not  be  considered 
in  this  proceeding;  that  so  long  as  defendants  "refrained  from  re- 
sorting to  unlawful  measures  to  effectuate"  their  purpose  "they 
could  not  be  said  to  be  engaged  in  a  conspiracy  to  unionize  plaintiff's 
mine";  that  "the  evidence  fails  to  show  that  any  unlawful  methods 
were  resorted  to  by  these  defendants  in  this  instance";  and  spe- 
cifically that  there  was  nothing  in  the  individual  contracts  which 
barred  defendants  from  inducing  the  employees  to  join  the  union. 
With  these  conclusions  I  agree  substantially. 

First:  The  alleged  illegality  of  the  United  Mine  Workers  of  America 
under  the  law  of  West  Virginia. 

The  United  Mine  Workers  of  America  does  not  appear  to  differ 
essentially  in  character  and  purpose  from  other  international  unions 
which,  like  it,  are  affiliated  with  the  American  Federation  of  Lal)or. 
Its  membership  is  said  to  be  larger  than  that  of  any  other;  and  it 
may  be  more  powerful.  But  the  common  law  does  not  limit  the 
size  of  unions  or  the  tlogree  to  which  individual  workmen  may  by 

^  .  .  .  The  agreeinont  rested  in  oral  understanding  merely,  ^nd  is  sufficiently 
indicated  in  the  following  exccTjJts  from  the  testimony  of  the  mine  superintendent 
as  to  what  he  told  the  men  applying  for  employment: 

"  I  also  told  them  that  any  man  who  wanted  to  become  a  member  of  the  United 
Mine  Workers  —  that  that  was  his  business  —  but  he  could  not  be  a  member 
of  the  United  Mine  Workers  and  be  affiliated  with  the  United  Mine  Workers 
and  bo  under  the  employ  of  the  Hitchman  Coal  &  Coke  Co.,  or  be  under  the 
jurisdiction  of  the  United  Mine  Workers;  that  the  mine  was  run  non-union  so 
far  as  the  United  Mine  Workers  of  America  were  concerned. 

"  (-1.  You  mean  you  made  every  man  understand  that  while  he  worked  for 
the  Hitchman  Co.  he  must  keep  oiit  of  the  union? 

"A.    Yes,  sir;  or  at  least  the}'  .said  they  understood  it." 


CHAP.  X]  UNION   ORGANIZERS   IN   NON-UNION   FIELDS  501 

union  increase  their  bargaining  power.  As  stated  in  Gompers  v. 
Bucks  Stove  &  Range  Co.,  221  U.  S.  418,  439:  "The  law,  therefore, 
recognizes  the  right  of  workingmen  to  unite  and  to  invite  others  to 
join  their  ranks,  thereby  making  available  the  strength,  influ^^nce 
and  power  that  come  from  such  association."  We  do  not  find  either 
in  the  decisions  or  the  statutes  of  West  Virginia  anything  incon- 
sistent with  the  law  as  declared  by  this  court.  The  union  is  not  an 
unlawful  organization,  and  is  not  in  itself  an  unlawful  conspiracy. 
We  have  no  occasion  to  consider  the  legality  of  the  specific  provisions 
contained  in  its  constitution  or  by-laws. 

Second:  The  alleged  illegality  of  the  United  Mine  Workers  of  America 
under  the  Federal  Aiiti-Trust  Act. 

The  District  Judge  undertook  to  pass  upon  the  legality  of  the 
United  Mine  Workers  of  America  under  the  Federal  Anti-Trust  Act; 
but  the  question  was  not  in  issue  in  the  case.  It  had  not  been  raised 
in  the  bill  or  by  answer.  Evidence  bearing  upon  the  issue  was  prop- 
erly objected  to  by  defendants  and  should  have  been  excluded. 

Third:   The  alleged  cons'piracy  against  the  West  Virginia  Mines. 

It  was  doubtless  the  desire  of  the  United  Mine  Workers  to  unionize 
every  mine  on  the  American  continent  and  especially  those  in  West 
Virginia  which  compete  directly  with  the  mines  of  Western  Pennsyl- 
vania, Ohio,  Indiana,  and  other  states  already  unionized.  That 
desire  and  the  purpose  to  effect  it  were  not  unlawful.  They  were 
part  of  a  reasonable  effort  to  improve  the  condition  of  workingmen 
engaged  in  the  industry  by  strengthening  their  bargaining  power 
through  unions;  and  extending  the  field  of  union  power.  No  con- 
spiracy to  shut  down  or  otherwise  injure  West  Virginia  was  proved, 
nor  was  there  any  averment  in  the  bill  of  such  conspiracy,  or  any 
issue  otherwise  raised  by  the  pleadings  which  justified  the  con- 
sideration of  that  question  by  the  District  Court. 

Fourth:   "  Unionizing  plaintiff's  mine  without  plaintiff's  consent." 

The  fundamental  prohibition  of  the  injunction  is  against  acts 
done  "for  the  purpose  of  unionizing  plaintiff's  mine  without  plaintiff's 
consent."  Unionizing  a  shop  does  not  mean  inducing  the  employees 
to  become  members  of  the  union.  It  means  inducing  the  employer 
to  enter  into  a  collective  agreement  with  the  union  governing  the 
relations  of  the  employer  to  the  employees.  Unionizing  implies, 
therefore,  at  least  formal  consent  of  the  employer.  Both  plaintiff 
and  defendants  insisted  upon  exercising  the  right  to  secure  con- 
tracts for  a  closed  shop.  The  plaintiff  sought  to  secure  the  closed 
non-union  shop  through  individual  agreements  with  employees. 
The  defendants  sought  to  secure  the  closed  union  shop  through  a 
collective  agreement  with  the  union.  Since  collective  bargaining  is 
legal,  the  fact  that  the  workingmen's  agreement  is  made  not  ])y  in- 
dividuals directly  with  the  employer,  but  by  the  employees  with 
the  union  and  by  it,  on  their  behalf,  with  the  employer,  is  of  no  signif- 
icance in  this  connection.     The  end  being  lawful,  defendant's  efforts 


502  UNION    ORGANIZERS   IN    NON-UNION    FIELDS  [CHAP.  X 

to  unionize  the  mine  can  be  illegal,  onty  if  the  methods  or  means 
pursued  were  unlaw'ful;  unless  indeed  there  is  some  special  signif- 
icance in  the  expression  "unionizing  without  plaintiff's  consent." 

It  is  urged  that  a  union  agreement  curtails  the  liberty  of  the  opera- 
tor. Every  agreement  curtails  the  libert}^  of  those  who  enter  into  it. 
The  test  of  legality  is  not  whether  an  agreement  cm-tails  liberty, 
but  whether  the  parties  have  agreed  upon  some  thing  which  the  law 
prohibits  or  declares  otherwise  to  be  inconsistent  with  the  public 
welfare.  The  operator  by  the  union  agreement  binds  himself:  (1) 
to  employ  only  members  of  the  union;  (2)  to  negotiate  with  union 
officers  instead  of  with  employees  individually  the  scale  of  wages 
and  the  hours  of  work;  (3)  to  treat  with  the  duly  constituted  repre- 
sentatives of  the  union  to  settle  disputes  concerning  the  discharge 
of  men  and  other  controversies  arising  out  of  the  employment.  These 
are  the  chief  features  of  a  "unionizing"  by  which  the  employer's 
liberty  is  cm-tailed.  Each  of  them  is  legal.  To  obtain  any  of  them 
or  all  of  them  men  may  lawfully  strive  and  even  strike.  And,  if  the 
union  may  legally  strike  to  obtain  each  of  the  things  for  which  the 
agreement  provides,  why  may  it  not  strike  or  use  equivalent  economic 
pressure  to  secure  an  agreement  to  provide  them? 

It  is  also  urged  that  defendants  are  seeking  to  "coerce"  plaintiff 
to  "unionize"  its  mine.  But  coercion,  in  a  legal  sense,  is  not  exerted 
when  a  union  merely  endeavors  to  induce  employees  to  join  a  union 
with  the  intention  thereafter  to  order  a  strike  unless  the  employer 
consents  to  unionize  his  shop.  Such  pressure  is  not  coercion  in  a 
legal  sense.  The  employer  is  free  either  to  accept  the  agreement 
or  the  disadvantage.  Indeed,  the  plaintiff's  whole  case  is  rested  upon 
agreements  secured  under  similar  pressure  of  economic  necessity 
or  disadvantage.  If  it  is  coercion  to  threaten  to  strike  unless  plain- 
tiff consents  to  a  closed  union  shop,  it  is  coercion  also  to  threaten 
not  to  give  one  employment  unless  the  applicant  will  consent  to  a 
closed  non-union  shop.  The  employer  may  sign  the  union  agree- 
ment for  fear  that  labor  may  not  be  otherwise  obtainable;  the  work- 
man may  sign  the  individual  agreement  for  fear  that  employment 
may  not  be  otherwise  obtainable.  But  such  fear  does  not  imply 
coercion  in  a  legal  sense. 

In  other  words  an  employer,  in  order  to  effectuate  the  closing  of 
his  shop  to  union  labor,  may  exact  an  agreement  to  that  effect  from 
his  employees.  The  agreement  itself  being  a  lawful  one,  the  em- 
ployer may  withhold  from  the  men  an  economic  need  —  employ- 
ment —  until  they  assent  to  make  it.  Likewise  an  agreement  closing 
a  shop  to  non-union  labor  being  lawful,  the  union  may  withhold 
from  an  employer  an  economic  need  —  labor  —  until  he  assents  to 
make  it.  In  a  legal  senses  an  agrcHunent  entered  into,  under  such 
circumstances,  is  voluntarily  entered  into;  and  as  the  agreement  is 
in  itself  legal,  no  reason  appears  why  the  general  rule  that  a  legal 
end  may  be  pursued  by  legal  means  should  not  be  applied.     Or, 


CHAP.  X]  UNION   ORGANIZERS   IN   NON-UNION    FIELDS  503 

putting  it  in  other  words,  there  is  nothing  in  the  character  of  the 
agreement  which  shoiikl  make  unlawful  means  used  to  attain  it, 
which  in  other  connections  are  recognized  as  lawful. 

Fifth:  There  was  no  attempt  to  induce  employees  to  violate  their 
contracts. 

The  contract  created  an  employment  at  will;  and  the  employee 
was  free  to  leave  at  any  time.  The  conti'act  did  not  bind  the  em- 
ployee not  to  join  the  union;  and  he  was  free  to  join  it  at  any  time. 
The  contract  merely  bound  him  to  withdraw  from  plaintiff's  employ, 
if  he  joined  the  union.  There  is  evidence  of  an  attempt  to  induce 
plaintiff's  employees  to  agree  to  join  the  union;  but  none  whatever 
of  any  attempt  to  induce  them  to  violate  their  contract.  Until  an 
employee  actually  joined  the  union  he  was  not,  under  the  contract, 
called  upon  to  leave  plaintiff's  employ.  There  consequently  would 
be  no  breach  of  contract  until  the  employee  both  joined  the  union 
a7id  failed  to  withdraw  from  plaintiff's  employ.  There  was  no  evi- 
dence that  any  employee  was  persuaded  to  do  that  or  that  such  a 
course  was  contemplated.  What  perhaps  was  intended  was  to  secure 
agreements  or  assurances  from  individual  employees  that  they  would 
join  the  union  when  a  large  number  of  them  should  have  consented 
to  do  so;  with  the  purpose,  when  such  time  arrived,  to  have  them 
join  the  union  together  and  strike  —  unless  plaintiff  consented  to 
unionize  the  mine.  Such  a  course  would  have  been  clearly  permis- 
sible under  the  contract. 

Sixth:  Merehj  persuading  employees  to  leave  plaintiff's  employ  or 
others  not  to  enter  it  was  not  unlawful. 

To  induce  third  persons  to  leave  an  employment  is  actionable  if 
done  maliciously  and  without  justifiable  cause  although  such  per- 
sons are  free  to  leave  at  their  own  will.  Truax  v.  Raich,  239  U.  S. 
33,  38;  Thacker  Coal  Co.  v.  Burke,  59  W.  Va.  253.  It  is  equally 
actionable  so  to  induce  others  not  to  enter  the  service.  The  individ- 
ual contracts  of  plaintiff  with  its  employees  added  nothing  to  its 
right  in  this  connection,  since  the  employment  was  terminable  at 
will. 

As  persuasion,  considered  merely  as  a  means,  is  clearly  legal,  de- 
fendants were  within  their  rights  if,  and  only  if,  their  interference 
with  the  relation  of  plaintiff  to  its  employees  was  for  justifiable  cause. 
The  purpose  of  interfering  was  confessedly  in  order  to  strengthen  the 
union,  in  the  belief  that  thereby  the  condition  of  workmen  engaged 
in  mining  would  be  improved;  the  bargaining  power  of  the  individ- 
ual workingman  was  to  be  strengthened  by  collective  bargaining; 
and  collective  bargaining  was  to  be  ensured  by  obtaining  the  union 
agreement.  It  should  not,  at  this  day,  be  doubted  that  to  induce 
working-men  to  leave  or  not  to  enter  an  employment  in  order  to  ad- 
vance such  a  purpose  is  justifiable  when  the  workmen  are  not  bound 
by  contract  to  remain  in  such  emplo3Tiient. 

Seventh:  There  was  no  "threat,  violence  or  intimidation." 


504  UNION   ORGANIZERS   IN   NON-UNION    FIELDS  [CHAP.  X 

The  decree  enjoined  "threats,  violence  or  intimidation."  Such 
action  would,  of  course,  be  unlawful  though  employed  in  a  justifiable 
cause.  But  there  is  no  evidence  that  any  of  the  defendants  have 
resorted  to  such  means.  The  propaganda  among  plaintiff's  em- 
ployees was  conducted  almost  entirely  by  one  man,  the  defendant 
Hughes,  a  District  No.  6  organizer.  His  actions  were  orderly  and 
peaceable,  consisting  of  informal  talks  with  the  men,  and  a  few 
quietly  conducted  public  meetings,  in  which  he  argued  the  benefits 
of  organization  and  pointed  out  to  the  men  that,  although  the  com- 
pany was  then  paying  them  according  to  the  union  scale,  there  would 
be  nothing  •  to  prevent  a  later  reduction  of  wages  unless  the  men 
united.  He  also  urged  upon  the  men  that  if  they  lost  their  present 
jobs,  membership  in  the  union  was  requisite  to  obtaining  employ- 
ment in  the  union  mines  of  the  neighboring  states.  But  there  is  no 
suggestion  that  he  exceeded  the  moderate  bounds  of  peaceful  per- 
suasion, and  indeed,  if  plaintiff's  witnesses  are  to  be  believed,  men 
with  whom  Hughes  had  talked,  his  argument  made  no  impression 
on  them,  and  they  expressed  to  him  their  satisfaction  with  existing 
conditions  at  the  mine. 

When  this  suit  was  filed  no  right  of  the  plaintiff  had  been  infringed 
and  there  was  no  reasonable  ground  to  believe  that  any  of  its  rights 
would  be  interfered  with;  and,  in  my  opinion,  the  Circuit  Court  of 
Appeals  properly  reversed  the  decree  of  the  District  Court,  and 
directed  that  the  bill  be  dismissed. 

Mr.  Justice  Holmes  and  Mr.  Justice  Clarke  concur  in  this 
dissent.^ 


DIAMOND  BLOCK  COAL  CO.  v.  UNITED  MINE 
WORKERS  OF  AMERICA 

Court  of  Appeals  of  Kentucky.     1920 
188  Ky.  477 

Opinion  by  Judge  Sampson.  —  Dissolving  injunction. 

The  Diamond  Block  Coal  Co.,  a  Virginia  corporation  doing  a 
coal  mining  business  in  Perry  county,  Kentucky,  filed  its  petition 
in  the  Perry  Circuit  Court  on  March  10,  1920,  praying  the  clerk  to 

•  For  a  careful  discussion  of  the  Hitchman  case,  see  Cook,  Privileges  of  Labor 
Unions  in  the  Struggle  for  Life,  27  Yale  Law  Jour.  779. 

Speaking  of  the  Hitchman  case,  Taft,  C.  J.,  in  American  Steel  Foundries  v.  Tri- 
City  Central  Trades  Council,  257  U.  S.  — ,  42  Sup.  Ct.  72,  said:  "The  plan  thus 
projected  wa.s  carried  out  in  the  case  of  the  complainant  company  l)y  the  use  of 
deception  and  miHreprescntation  with  its  non-union  employees,  by  seeking  to  in- 
duce such  employees  to  become  members  of  the  Union  contrary  to  the  express 
tend  of  their  contract  of  em|)loyment  that  they  would  not  remain  in  complainant's 
employ  if  union  men,  and  after  enough  such  employees  had  been  secretly  secured, 
suddenly  to  declare  a  strike  against  complainant  and  to  leave  it  in  a  helpless  situa- 
tion in  which  it  would  have  to  consent  to  be  unionized.     This  Court  held  that 


CHAP.  X]  UNION   ORGANIZERS   IN    NON-UNION    FIELDS  505 

grant  it  an  immediate  temporary  restraining  order  and  that  the 
court  make  this  perpetual,  enjoining  and  restraining  the  defendants, 
United  Mine  Workers  of  America,  and  seventeen  individuals  named 
in  the  petition  as  defendants,  and  all  persons  working  by,  through  or 
under  them,  or  in  their  employment,  from  proceeding  to  erect,  con- 
struct or  build  or  attempting  to  erect,  construct  or  build,  near  the 
coal  plant  of  the  plaintiff,  shacks,  houses  or  tents,  or  shelter  of  any 
kind,  and  from  placing  therein,  or  attempting  to  place  therein  any 
person  or  persons  for  the  purpose  of  inducing  or  persuading  any  of 
its  employees,  laborer  or  laborers  to  break  their  contracts  of  em- 
ployment with  the  plaintiff,  and  from  doing  divers  other  things  set 
forth  in  the  prayer  of  the  petition.  .  .  .  After  alleging  that  the 
plaintiff  is  a  corporation  organized  under  the  laws  of  Virginia  for 
the  purpose  of  mining  and  selling  coal,  .  .  .  and  that  its  employees, 
about  seventy-five  in  number,  were  content  and  well-satisfied  with 
the  labor  conditions  prevailing  at  the  mines,  [the  petition]  alleges 
that  the  defendants,  naming  them,  "are  each  claiming  to  have  some 
connection  of  some  sort  with  their  co-defendant.  United  Mine  Work- 
ers of  America,  and  as  such,  with  the  exception  of  the  defendants. 
Jack  Morris  and  Lee  Marks,  are  and  have  been  for  some  time  hold- 
ing meetings  for  the  purpose,  as  the  plaintiff  is  informed,  of  attempt- 
ing to  interfere  in  some  way  with  what  they  term  the  miners  em- 
ployed and  engaged  in  its  mine,  and  all  workers  employed  by  it  in 
and  about  its  mine,  but  so  far  have  failed  to  make  any  headway 
thereat,  but  the  plaintiff  now  says  that  the  defendants  acting  to- 
gether and  in  concert  with  each  other,  and  individually  are  now 
thi-eatening  to  come  near  to  and  in  to  the  plant  of  the  plaintiff  and 
erect  nearby  its  plant,  and  within  200  yards  thereof,  houses,  tents, 
shacks  and  buildings."  ... 

No  witness  for  the  plaintiff  relates  any  fact  which  proves,  or  in 
any  measure  tends  to  prove  that  the  defendants,  or  either  of  them, 
have  used  unlawful  means,  or  have  threatened  to  use  any  unlawful 
means  to  promote  the  interest  of  the  union,  or  to  injure  the  plaintiff 
in  its  property  or  its  property  rights.  No  witness  for  plaintiff  testifies 
to  any  act  or  threat  of  either  of  the  defendants,  except  that  the 
organization  and  some  of  the  other  defendants  named  have  been 
endeavoring  peaceably  to  organize  and  institute  local  unions  of 
laboring  people  in  the  Hazard  district  and  have  solicited  persons  to 
become  members  of  the  organization,  and  have  attempted  to  peace- 
ably persuade  workingmen  of  that  district  to  join  the  union.  .  .  . 

the  purpose  was  not  lawful,  and  that  the  means  were  not  lawful  and  that  the 
defendants  were  thus  engaged  in  an  unlawful  conspiracy  which  should  be  en- 
joined. The  unlawful  and  deceitful  means  used  were  quite  enough  to  sustain  the 
decision  of  the  court  without  more.  The  statement  of  the  purpose  of  the  plan  is 
sufficient  to  show  the  remoteness  of  the  benefit  ultimately  to  be  derived  by  the 
members  of  the  International  Union  from  its  success  and  the  formidable  country- 
wide and  dangerous  character  of  the  control  of  interstate  commerce  sought." 


506  UNION   ORGANIZERS   IN   NON-UNION   FIELDS  [CHAP.  X 

From  all  the  evidence,  of  which  there  is  a  great  quantity,  the 
following  facts  ma}^  be  adduced: 

Some  months  before  this  litigation  started,  three  or  four  local 
unions  among  mine  workers  were  organized  in  the  Hazard  field,  but 
neither  one  was  located  at  Diablock;  however  a  few  of  the  men 
employed  at  plaintiff's  mines  became  members  of  one  of  these  locals 
and  were  discharged  by  the  company  for  no  other  cause  than  that 
they  had  become  members  of  the  union.  The  union  was  trying  to 
increase  its  membership  and  to  organize  other  locals,  while  the  opera- 
tors and  the  different  members  of  their  association  were  attempting 
to  suppress  union  labor  and  to  expel  it  from  that  coal  field.  While 
this  struggle  was  going  on  the  men  who  were  discharged  for  joining 
the  union  were  evicted  by  the  companies  from  their  houses  and  as 
they  could  not  obtain  employment  at  other  camps  in  that  vicinity, 
were  often  unable  to  find  shelter,  and  to  overcome  this  obstacle  the 
mine  workers  leased  thi-ee  or  four  small  pieces  of  ground  at  different 
places  in  the  Hazard  field,  one  of  the  tracts  being  the  W.  O.  Davis 
tract  mentioned  in  the  evidence.  It  contains  about  five  acres,  lies 
upon  a  hillside  near  the  Kentucky  river  and  about  one-half  to  three- 
fourths  of  a  mile  from  the  place  of  business  of  the  plaintiff.  Diamond 
Block  Coal  Co.  It  was  the  intention  of  the  mine  workers  to  use  these 
scraps  of  ground  as  building  sites  for  shanties  or  cheap  dwelling 
houses  and  tents  to  be  occupied  by  such  of  their  membership  as  were 
evicted  b}^  the  companies  from  their  tenant  houses.  A  few  days 
before  this  litigation  started,  the  United  Mine  Workers  entered  into 
a  written  contract  with  defendants,  Marks  and  Morris,  carpenters 
and  builders  of  Hazard,  to  erect  ten  shanties  of  given  dimensions, 
upon  the  W.  O.  Davis  tract,  and  these  workmen  in  pursuance  to  their 
contract  began  the  erection  and  had  completed  three  of  the  houses 
at  the  time  the  injunction  was  sued  out  and  served  on  them.  The 
uncontradicted  evidence  shows  that  the  mine  workers  had  great 
difficulty  in  finding  and  locating  land  that  they  could  lease  for  the 
purpose  of  erecting  abiding  places  for  their  men,  and  that  the  Davis 
tract  was  not  selected  because  it  was  near  the  Diamond  Block  Coal 
Co.,  nor  because  it  was  especially  desirable,  but  rather  because  it 
was  the  only  tract  obtainable  in  that  vicinity.  It  further  appears 
that  while  defendants  were  anxious  to  organize  the  men  working 
about  the  mines  throughout  the  Hazard  field,  they  were  not  espe- 
cially interested  in  the  organization  of  the  men  at  plaintiff's  place. 

On  this  hearing  the  circuit  judge,  .sitting  as  a  chancellor,  overruled 
the  motion  of  defendants  to  dissolve  tlu;  temporary  i-estraining  order 
and  entered  an  order  continuing  the  injunction  in  force  until  the 
case  was  prepared  upon  its  merits,  or  until  defendants  could  apply 
to  a  judge  of  this  court  for  a  dissolution. 

As  there  is  no  evidence  to  sujipoit  the  all(>gnti<)iis  of  the  petition, 
that  (l(!f(!ndants  hav(;  used  thn^ats,  iiitiinidation,  coercion  and  fraud 
to  acconii)lisli  tlicii  purposes,  and  as  tlxisc;  allegations  are  specifically 


CHAP.  X]  UNION   OKGANIZERS   IN   NON-UNION   FIELDS  507 

denied  by  defendants,  thus  putting  the  burden  of  proof  upon  the 
plaintiff,  and  as  it  is  admitted  by  plaintiff  and  its  officers  that  its 
mines  continue  uninterruptedly  to  run,  and  no  employee  has  been 
induced  by  defendants,  or  either  of  them,  to  leave  its  employment, 
and  that  its  employees  have  the  right  to  quit  its  employment  at 
any  time,  it  follows  that  the  plaintiff  has  wholly  failed  to  make  out 
its  case  unless  it  be  that  the  peaceable  solicitation  of  miners  to  be- 
come members  of  the  organization  in  that  district  was  a  violation 
of  the  rights  of  the  plaintiff,  or  that  the  leasing  of  the  ground  by 
defendants  from  Davis  and  others  and  the  erection,  or  attempted 
erection,  of  the  shacks  or  tenant  houses  was  an  invasion  of  the  rights 
of  plaintiff.  In  its  last  analysis,  plaintiff's  only  complaint  supported 
by  evidence  is  that  defendants  have  leased  the  ground  and  are  pro- 
posing to  erect  shacks  thereon,  and  are  soliciting  other  employees 
to  become  members  of  the  union. 

While  the  United  Mine  Workers  of  America  is  a  voluntary  associa- 
tion and  not  a  corporation,  it  is  recognized  both  by  federal  statutes 
and  the  statutes  of  Kentucky.  The  association,  through  its  officers, 
had  a  right  to  enter  into  a  lease  contract  with  Davis  and  to  erect 
the  houses  for  the  shelter  of  its  membership.  Of  this  there  can  be 
no  doubt.  That  it  was  going  to  house  and  care  for  laboring  men  who 
had  been  discharged  and  evicted  by  employers  in  that  vicinity 
because  the  men  joined  the  unions,  does  not  militate  against  tho 
manifest  right  of  the  association  to  otherwise  make  a  lease  and  erect 
houses.  So  long  as  the  union  keeps  within  its  legal  rights  it  may 
lease  as  much  ground  and  erect  as  many  houses  as  may  satisfy  its 
purpose,  and  it  violates  no  right  of  the  plaintiff  because  the  rights 
of  two  persons  never  conflict. 

Labor  organizations  have  a  status  in  this  country  the  same  as 
other  associations.  Courts  without  exception  have  recognized  the 
right  of  laboring  men  to  associate  themselves  together  to  better 
their  conditions  and  to  increase  their  wages  by  lawful  means.  They 
may  organize  new  lodges  and  solicit  membership  at  any  time  or 
place  so  long  as  they  do  not  trespass  upon  the  rights  of  another.  .  .  . 

The  general  rule  seems  to  be  that  organizers  of  labor  unions  may 
use  any  peaceable  means,  not  partaking  of  fraud,  to  induce  persons 
to  become  members,  and  equity  will  not  enjoin  such  organizers,  or 
their  associates,  from  attempting  by  proper  argument  to  persuade 
others  to  join  the  union  so  long  as  they  do  not  resort  to  force  or 
intimidation.  If  the  union  should  induce  employees  of  the  plaintiff 
to  become  members  of  its  organization,  and  the  plaintiiT,  as  it  has 
done  in  the  past,  should  discharge  such  employees  because  of  their 
membership  in  the  union,  and  the  plaintiff  should  thereby  lose  the 
service  of  the  employee,  the  proximate  cause  would  not  be  the  join- 
ing of  the  union  by  the  employee  but  the  discharge  of  the  employee 
by  the  plaintiff,  and  the  plaintiff  could  have  no  legal  redress  of  the 
defendant,  even  though  all  its  employees  should  so  join  the  union 


508  UNION    ORGANIZERS   IN   NON-UNION   FIELDS  [CHAP.  X 

and  should  in  consequence  suffer  discharge  by  the  plaintiff  and  its 
business  should  be  closed.  Neither  will  an  injunction  issue  in  a 
case  of  this  character  where  there  is  no  proof  of  irreparable  injury 
or  the  evidence  fails  to  show  that  the  acts  complained  of  are  likely 
to  be  continued,  nor  will  an  injunction  lie  because  of  a  single  act  of 
trespass  in  entering  upon  the  premises  of  the  complainant  where 
there  is  no  threatened  repetition  of  the  act.  .  .  . 

In  this  jurisdiction  the  rule  is  thoroughly  established  that  a  labor 
organization,  through  its  officers  and  agents,  may  organize  new 
branches  and  solicit  membership  among  employees  of  concerns  that 
are  opposed  to  union  labor  so  long  as  they  use  only  peaceable  means, 
such  as  persuasion  and  argument,  and  are  not  guilty  of  threats 
against  the  person  or  property,  intimidation,  coercion  or  fraud.  No 
sufficient  facts  were  shown  on  which  the  extraordinary  remed}'  of 
injunction  should  have  been  granted  to  complainant  in  this  case,  as 
injunctive  relief  can  be  had  in  no  case  except  where  it  is  made  to 
appear  that  complainant  has  no  adequate  remedy  at  law  and  that 
great  and  irreparable  injury  will  result. 

Capital  may  lawfully  organize  for  its  advancement  and  protec- 
tion. It  does  so  every  day.  Labor  may  rightfully  do  the  same  thing. 
This  is  the  American  way  —  the  best  known  way.  A  business  man 
decides  he  would  like  to  go  into  the  coal  mining  business;  he  knows 
if  he  does  he  will,  to  some  extent,  reduce  the  business  chances  and 
profits  of  those  concerns  already  in  the  business  of  producing  coal, 
but  he  has  the  right,  if  he  can,  to  engage  in  the  business  and  to  peace- 
ably organize  capital  to  aid  him  in  carrying  out  his  plans,  and  in 
doing  this  he  may  approach  other  business  men  and  persuade  or 
induce  them  or  any  number  to  join  him  in  his  new  enterprise.  Such 
men  join  their  fortunes  to  make  themselves  more  powerful,  their 
business  chances  greater  and  their  profits  larger.  For  the  same  rea- 
son workingmen  get  together  and  organize.  They  want  to  increase 
their  efficiency,  power,  influence  and  business  chances.  We  are 
born  equal  in  civil  rights  and  so  remain  although  our  avocations  and 
fortunes  are  widely  different.  What  capital  may  lawfully  do,  labor 
may  do  with  equal  right.  Neither  has  the  lawful  i:)Ower  to  invade 
the  rights  of  the  other,  nor  would  it  be  to  the  advantage  of  either. 
The  two  are  inseparable  companions.  One  cannot  exist  without 
the  other. 

Some  common  basis  can  and  must  be  found  on  which  to  work 
out  the  difficulties  which  confound  industrials  today  without  stifling 
initiative,  hope  and  ambition  —  the  spirit  of  our  institutions.  An 
hour's  labor  in  a  given  community  at  a  given  calling  should  bring 
the  toiler  a  given  sum,  witli  jiurchasing  power,  measured  in  the 
common  necessities  of  life,  sufficient  to  carry  him,  if  judiciously 
employed,  for  a  given  time.  This  basis  must  bear  a  fixed  relation 
to  the  cost  of  production  of  such  articles  as  wheat,  corn,  meat,  cot- 
ton, wool  and  hides,  as  well  as  the  value  of  the  finished  product  of 


CHAP.  X]  UNION   ORGANIZERS   IN   NON-UNION    FIELDS  509 

the  hour's  labor.  When  this  plan  is  worked  out  and  properly  ad- 
ministered, both  labor  and  capital  will  be  benefited  and  there  will 
cease  to  be  strikes  and  other  manifestations  of  industrial  unrest.  .  .  . 

An  order  has  been  entered  dissolving  and  setting  aside  the  tem- 
porary injunction  granted  by  the  judge  of  the  Circuit  Court. 

Whole  court  sitting. 


GASAWAY  V.  BORDERLAND  COAL  CORPORATION 
U.  S.  Circuit  Court  of  Appeals,  Seventh  Circuit.    1921 

278  Fed.  56 

Before  Baker,  Alschuler  and  Page,  Circuit  Judges. 
Baker,  Circuit  Judge.    The  general  nature  of  the  case  is  stated 
in  the  opinion  filed  by  the  District  Judge: 

"The  bill  avers  and  the  proof  shows  a  combination  and  work- 
ing arrangement,  —  a  conspiracy,  between  the  United  Mine 
Workers  of  America  and  the  coal  operators  in  the  so-called 
Central  Competitive  Field,  to  destroy  what  some  of  the  con- 
spirators call  the  '  vicious  competition  '  of  the  West  Virginia 
mines. 

"Almost  all  of  the  coal  produced  in  West  Virginia  is  shipped 
out  of  the  state  in  interstate  commerce,  and  the  business  of  the 
plaintiff  is  shown  to  be  interstate.  It  lifts  its  coal  out  of  its 
mines  in  one  state  and  places  it  upon  cars  for  shipment  in  an- 
other. The  evidence  shows  that  the  competition  complained 
of  and  sought  to  be  destroyed,  is  competition  in  the  sale  of 
bituminous  coal  throughout  the  several  states.  A  conspiracy 
to  destroy  such  competition  is  in  direct  contravention  of  the 
Sherman  Anti-Trust  Act.  .  .  . 

"The  bituminous  coal  fields  of  the  United  States  are  already 
unionized  except  a  portion  of  West  Virginia  and  a  small  section 
of  the  Southwestern  part  of  the  country,  and  an  effort  to  union- 
ize the  West  Virginia  mines  is  part  of  an  effort  to  monopolize 
all  the  coal  industry  in  the  United  States  until,  as  one  of  the 
conspirators  says,  the  United  Mine  Workers'  organization  'shall 
cover  every  coal-producing  state  in  the  republic' 

"The  method  agreed  upon  and  adopted  by  the  conspirators 
to  thus  destroy  competition  was  to  organize  or  unionize  the 
West  Virginia  field.  These  West  Virginia  operators  desire  to 
run  their  mines  on  a  non-union  basis.  The  effort  on  the  part  of 
the  defendants  to  unionize  these  mines  and  thus  compel  the 
operators  to  unwillingly^  run  upon  the  union  basis,  would  result 
either  in  the  suppression  of  this  non-union  mining  altogether, 
or  would  put  such  restrictions  on  it  as  to  accomplish  the  objects 
of  the  conspiracy,  —  namely,  raise  the  price  of  the  West  Vir- 
ginia product  so  that  it  could  not  compete  with  the  so-called 


510  UNION   ORGANIZERS   IN   NON-UNION   FIELDS  [CHAP.  X 

Central  Competitive  Field.  The  attempt  to  do  this  was  con- 
tinued for  some  time  by  the  usual  incidents  of  violence  and 
exhibitions  of  force,  and  matters  progi'essed  until  a  state  of 
war  existed  in  West  Virginia  which  the  state  government  was 
unable  to  put  down,  and  upon  the  call  of  the  state  authorities, 
the  President  of  the  United  States  declared  martial  law,  sent 
federal  troops  into  West  Virginia  and  restored  order. 

"The  evidence  shows  that  members  of  the  Mine  Workers' 
Union  purchased  firearms  and  ammunition  and  otherwise 
financed  the  violent  activities  in  behalf  of  the  unionizing  forces 
in  West  Virginia,  and  this  state  of  war  continued  until  the 
President  sent  troops  into  the  state,  and  it  is  only  held  in  abey- 
ance because  of  that  fact. 

"The  evidence  shows  that  the  revenues  of  the  Mine  Work- 
ers' Union  are  produced  from  dues  and  assessments  laid  upon 
the  members ;  that  these  fines  and  assessments  are  by  an  arrange- 
ment between  the  Miners'  organization  and  the  operators, 
taken  from  the  wages  of  the  workers  in  the  mines  by  the  opera- 
tors and  paid  by  them  to  the  organization  of  Mine  Workers. 
This  is  the  *  check-off '  system.  The  membership  is  large  and 
the  dues  and  assessments  yield  an  enormous  sum. 

"Statements  made  by  officers  of  the  United  Mine  Workers 
show  that  the  Miners'  organization  has  sent  into  West  Vir- 
ginia to  carry  on  this  struggle  more  than  two  and  a  half  milhon 
dollars,  and  the  secretary-treasurer  of  that  organization,  in  his 
report  to  the  Convention  recently  held  in  this  city,  stated  that 
during  the  year  ending  August  1,  1921,  the  organization  had 
sent  into  West  Virginia  more  than  a  million  dollars.  This 
money  was  derived  from  the  '  check-off  '  system,  and  was  sent 
to  West  Virginia  to  assist  in  the  effort  to  organize  the  West 
Virginia  field. 

"The  evidence  without  contradiction  shows  that  ammuni- 
tion and  arms  were  purchased  by  members  of  the  Mine  Work- 
ers' Union  and  used  for  the  purpose  of  carrying  on  this  struggle. 
It  is  claimed  on  the  part  of  the  defendants  that  the  money 
used  to  purchase  these  arms  and  this  ammunition  and  to  mobilize 
and  direct  these  armies  came  from  the  locals,  and  that  no  part 
of  the  money  sent  from  here  was  used  for  that  purpose,  but  that 
such  money  was  and  is  used  only  in  such  peaceable  ways  as 
caring  for  and  feeding  and  furnishing  supplies  to  those  union 
miners  who  have  been  evicted  from  their  homes  or  deprived 
of  a  living  or  otherwise  put  to  a  disadvantage  in  carrying  on 
this  struggle. 

"If  this  be  true,  it  is  quite  apparent  that  there  is  no  difference 
in  the  activities  of  those  who  furnish  the  food  and  supplies  for 
the  army,  and  those  who  furnish  it  its  arms  and  ammunition. 
The  money  sent  by  the  Miners'  organization  derived  from  the 


CHAP.  X]  UNION   ORGANIZERS   IN    NON-UNION    FIELDS  511 

'  check-off  '  system,  as  above  stated,  is  sent  there  to  aid,  abet 
and  assist  those  on  the  ground,  actively  engaged  in  the  unlaw- 
ful attempt  to  unionize  the  non-union  mines  in  West  Virginia 
and  destroy  competition,  as  above  stated. 

"The  evidence  clearly  shows  that  the  mine  operators  know  — 
at  least  they  know  now  —  that  this  money  thus  contributed 
by  them  through  the  '  check-off  *'  system  is  used  in  this  unlaw- 
ful manner.  It  therefore  follows  that  the  use  of  such  money 
should  be  enjoined,  and  the  carrying  on  of  the  '  check-off  ' 
system  as  a  means  for  raising  it  should  likewise  be  enjoined.  .  .  . 

"This  court  cannot  police  West  Virginia,  nor  does  it  hold 
that  the  United  Mine  Workers'  Union  is  itself  an  unlawful 
organization,  nor  will  it  in  any  way  attempt  to  curtail  its  law- 
ful activities;  but  it  can  enjoin  the  unlawful  activities  of  the 
parties  here  in  Indiana  who  are  here  now  under  the  jurisdiction 
of  this  court,  and  a  temporary  injunction  to  that  effect  will  be 
issued." 

And  thereupon  the  District  Court  entered  the  following  decree :  .  .  . 

"That  the  defendants,  P.  H.  Penna,  J.  H.  Seifert  and  W.  J. 
Snyder,  citizens  and  residents  of  the  state  of  Indiana,  Jackson 
Coal  and  Coke  Co.,  Queen  Coal  and  Mining  Co.,  Rowland 
Power  Consolidated  Colliers  Co.  and  Lower  Vein  Coal  Co., 
corporations  organized  under  the  state  of  Indiana  and  citizens 
and  residents  of  said  state  individually  and  as  representatives 
of  the  class  of  persons  made  defendants  in  the  original  and 
amended  bill  of  complaint  filed  herein,  be,  and  they  are  hereby, 
and  each  of  them  is  hereby,  enjoined  and  restrained  from  col- 
lecting over  and  through  their  pay  rolls,  or  over  and  through 
the  pay  rolls  of  either  of  them,  or  in  any  other  manner,  any  and 
all  moneys  as  dues  and  assessments  levied  or  charged  by  the 
said  United  Mine  Workers  of  America,  its  officials  or  members, 
upon  or  against  its  members,  employees  of  said  individuals 
and  of  said  defendant  corporations,  or  who  may  hereafter  be 
employed  by  them,  or  either  of  them,  under  the  check-off  pro- 
visions of  the  contracts  in  evidence  herein  and  heretofore  exe- 
cuted by,  or  on  behalf  of,  said  named  defendants  and  the  officials 
or  members  of  said  United  Mine  Workers  of  America,  or  under 
any  and  all  contract  or  contracts  that  may  hereafter  be  executed 
between  the  said  defendants  and  the  officials  or  members  of 
the  said  United  Mine  Workers  of  America,  and  from  paying  the 
same  to  the  officials,  members  or  representatives  of  said  United 
Mine  W^orkers  of  America. 

"That  the  defendants  Ora  Gasaway  and  W.  D.  Van  Horn, 
citizens  and  residents  of  the  state  of  Indiana,  individually  and 
as  members  of  the  International  Executive  Board  of  said  United 
Mine  Workers  of  America,  and  their  respective  successors  in 


512  UNION    ORGANIZERS   IN   NON-UNION   FIELDS  [CHAP.  X 

office,  and  their  committees,  agents,  servants,  confederates  and 
associates  and  all  the  other  officials,  representatives,  members, 
agents,  attorneys  and  servants  of  said  United  Mine  Workers 
of  America,  and  all  persons  who  now  are,  or  hereafter  may  be, 
members  of  said  United  ]\Iine  Workers  of  America,  and  all  per- 
sons combining,  confederating  or  conspiring  with  the  said 
designated  persons,  and  all  other  persons  whomsoever,  and 
each  and  every  one  of  them,  be,  and  they  are  hereby,  en- 
joined and  restrained: 

"From  advising,  assisting,  encouraging,  aiding,  abetting  or 
in  any  way  or  manner  and  by  any  and  all  means  whatsoever, 
by  the  use  of  any  funds  or  moneys  howsoever  collected  by  the 
International  Union  United  ]\Iine  Workers  of  America,  its 
officers,  members,  agents  or  representatives,  to  the  unionization 
or  the  attempted  unionization  of  the  non-union  mines  in  Mingo 
county.  West  Virginia,  and  Pike  county,  Kentucky;  but  this 
injunction  and  restraining  order  is  not  to  be  interpreted  or 
understood  to  prevent  the  payment  by  Wm.  Green,  secretary- 
treasurer  of  the  United  Mine  Workers  of  America,  of  sufficient 
funds  to  the  members  of  said  United  Mine  Workers  of  America, 
now  living  in  tents,  or  out  of  employment,  in  Mingo  county. 
West  Virginia,  and  Pike  county,  Kentucky,  for  their  actual 
necessities  until  the  further  order  of  this  court,  this  exception, 
however,  not  to  include  any  person  or  persons  not  bona  fide 
miners  and  not  now  members  of  said  United  Mine  Workers  of 
America  and  their  dependents." 

This  is  an  appeal  from  an  interlocutory  decree  of  injunction.  The 
controversy  has  its  roots  in  the  alleged  conspiracy  of  mine  operators 
in  the  Central  Competitive  Field  (Western  Pennsylvania,  Ohio, 
Indiana  and  Illinois)  with  their  miners,  members  of  the  United 
Mine  Workers  of  America,  a  voluntary  unincorporated  labor  union, 
to  coerce  the  mine  operators  of  the  Williamson  district  (Mingo 
county.  West  Virginia,  and  Pike  county,  Kentucky),  who  are  con- 
ducting closed  non-union  mines,  into  unionizing  their  mines,  to  the 
injury  of  their  rights  in  interstate  commerce  secured  to  them  by  the 
Constitution  and  laws  of  the  United  States. 

Appellee's  bill  named  as  defendants  the  United  Mine  Workers 
of  America,  the  president,  vicc-prositlcnt,  and  secretary-treasurer 
thereof,  numerous  individuals  described  as  members  of  the  execu- 
tive board,  twenty-four  district  local  unions  of  the  United  Mine 
Workers,  and  numerous  individual  and  corporate  mine  operators. 
On  motion  the  District  Court  dismissed  the  l)ill  as  to  the  United  Mine 
Workers,  the  district  locals,  and  all  the  in(Uvi<hials  described  as 
officers  of  the  United  Mine  Workers  except  appellants  (lasaway  and 
Van  Horn  who  are  citizens  and  residents  of  Indiana  and  who  alone 
were  within  the  jurisdiction  of  the  District  Court  of  Indiana. 


CHAP.  X]  UNION   ORGANIZERS   IN    NON-UNION    FIELDS  513 

This  appeal  is  prosecuted  by  Gasaway  and  Van  Horn.  Inasmuch 
as  the  mine  operators,  defendants  below,  are  not  parties  to  this 
appeal,  the  decree  is  not  reviewable  as  to  them  except  so  far  as  it  may 
affect  the  rights  of  these  appellants. 

Because  the  bill  states  a  good  cause  of  action,  and  because  the 
decree  is  merely  interlocutory,  nothing  is  now  involved  but  the  ques- 
tion whether  the  decree  clearly  discloses  an  improvident  exercise  of 
judicial  discretion.  .  .  . 

Injunction  is  an  extraordinary  remedy.  It  is  limited  to  the  pro- 
tection of  property  from  unlawful  invasion.  Execution  in  advance 
of  a  full  hearing  and  final  determination  of  the  issues  is  a  drastic 
measure  which  may  deprive  defendants  of  rights  confirmed  in  them 
by  the  final  decree.  Because  the  preliminary  injunction  is  neces- 
sarily so  drastic  in  its  nature,  great  care  should  be  had  in  exercising 
the  discretion.  What  we  have  already  said  with  respect  to  the  facts 
indicates  our  approval  of  the  granting  of  a  preliminary  injunction 
herein  of  whatever  scope  is  necessary  to  protect  the  property  be- 
fore the  court.  But  no  injunction,  preliminary  or  final,  should  for- 
bid more  than  the  particular  unlawful  invasions  which  the  court 
finds  would  be  committed  except  for  the  restraint  imposed.  Swift 
V.  United  States,  196  U.  S.  375;  Hitchman  Coal  Co.  v.  Mitchell, 
245  U.  S.  229. 

Appellee's  property,  which  was  being  injured  by  appellants'  tres- 
passes (which,  unless  enjoined,  would  be  continued),  was  its  busi- 
ness of  mining  coal  and  shipping  it  in  interstate  commerce.  .  .  . 
Inasmuch  as  appellee's  bill  is  the  oldtime  and  familiar  one  to  protect 
property  from  injury  through  continuing  direct  trespasses  thereon, 
proof  of  the  iniquitous  conspiracy  between  the  United  Mine  Workers 
and  the  operators  of  the  Central  Competitive  Field  was  useful  only 
in  showing  that  the  illegal  acts  of  the  tort-feasors  in  the  William- 
son district  would  be  continued  unless  restrained  and  that  appel- 
lants in  Indiana  were  parties  to  the  threatened  invasions.  For  it 
was  not  the  conspiracy  that  was  inflicting  the  damage  to  appellee's 
property. 

Bill  and  affidavits  show  the  following  trespasses  upon  appellee's 
property  rights  in  interstate  commerce:  Destruction  of  appellee's 
property  used  in  operating  its  mine;  interference  with  and  intimida- 
tion of  appellee's  officers,  agents,  and  employees,  by  armed  forces, 
by  assaults,  by  threatening  and  abusive  language,  and  by  intrusions 
upon  their  privacy  without  invitation  or  consent;  inducing  appellee's 
employees  secretly  to  change  from  non-union  to  union  men  and  to 
remain  in  appellee's  employment  in  violation  of  their  contracts,  the 
terms  of  which  were  known  to  the  trespassers;  and  in  using  money, 
sent  into  West  Virginia  by  the  United  Mine  Workers'  general  or 
executive  officers,  to  aid  in  the  commission  of  the  foregoing  trespasses. 
All  these  unlawful  acts  (none  of  which  was  specified  in  the  decree) 
should  be  enjoined  by  the  preliminary  injunction,  with  leave  to  the 


514  UNION    ORGANIZERS    IN   NON-UNION    FIELDS  [CHAP.  X 

District  Court  to  restrain  other  specifically  threatened  trespasses 
upon  appellee's  property  rights,  if  any  is  shown. 

But  appellee  was  not  satisfied  with  such  a  decree.  It  asked  that 
the  United  Mine  Workers  be  dissolved  or  enjoined  from  functioning, 
on  the  ground  that  it  is  a  seditious  and  otherwise  unlawful  organiza- 
tion. The  District  Court  declined  to  find  that  the  union  is  an  unlaw- 
ful body.  But,  as  we  have  already  indicated,  appellee  must  stand 
solely  on  its  own  private  rights;  appellee  is  not  the  guardian  of 
others;  appellee  is  not  the  vindicator  of  the  pubhc's  rights,  criminal 
or  civil;  and  it  was  not  the  conspiracy,  but  the  trespasses  of  joint 
tort-feasoi's,  who  are  liable  independently  of  the  conspiracy  as  a 
ground  of  action,  that  inflicted  the  injury-  upon  appellee's  property. 

Appellee  sought  and  obtained  a  decree  restraining  "the  unioniza- 
tion or  attempted  unionization  of  the  non-union  mines"  in  the  Wil- 
hamson  District.  Appellants,  and  their  agents  and  representatives 
in  West  Virginia,  are  thus  enjoined  from  publishing  la\vful  union 
arguments  and  making  lawful  union  speeches  in  the  closed  district; 
from  making  lawful  appeals  to  those  in  the  pool  of  unemployed 
labor  to  join  the  union  rather  than  the  non-union  ranks;  and  from 
using  lawful  persuasion  to  induce  any  one  of  appellee's  employees  to 
join  the  union  and  thereupon  instantty  and  openly  to  sever  his  re- 
lationship with  appellee,  not  in  violation  of,  but  in  exact  accordance 
with,  his  contract  with  appellee.  Manifestly  the  purpose  of  such 
publications,  pubhc  speeches  and  personal  persuasions  would  be  to 
enlarge  the  membership  of  the  union.  If  completely  successful, 
these  means  would  compel  appellee,  if  it  staid  in  business,  to  deal 
with  the  union,  and  thus  "unionize"  its  mine.  And  use  of  these 
means,  short  of  complete  success,  would  be  an  "attempted  unioniza- 
tion." This  broad  sweep  of  restraint  makes  it  necessary  to  refer 
briefly  to  the  rights  of  employers  and  of  labor  unions.  Unions  of 
owners  of  capital  may  bargain  collectively,  through  their  ofl[icers, 
with  laborers  either  individually  or  collectively.  Unions  of  laborers 
may  bargain  collectively,  through  their  officers,  with  employers 
either  individually  or  collectively.  Employers  may  bargain  for  a 
closed  non-union  shop.  Laborers  may  bargain  for  a  closed  union 
shop.  Both  are  entitled  to  free  and  equal  access  to  the  pool  of  un- 
employed labor  for  the  purpose  of  securing  recruits  by  peaceable 
appeals  to  reason.  Employers  may  persuade  a  union  man,  provided 
they  do  not  violate  his  right  of  privacy  nor  invade  the  rights  of  an- 
other, to  become  non-union.  Union  laborers  may  under  the  same 
conditions  persuade  a  non-union  man  to  become  union.  If  the  argu- 
ments of  the  owners  of  closed  non-union  shops  should  be  universally 
accepted,  labor  unions  would  have  no  ground  of  complaint,  either 
legal  or  equitable,  for  their  decline  and  fall.  If  the  arguments  of  the 
advocates  of  the  closed  union  shop  should  prevail,  then  similarly 
their  opponents  would  have  no  legal  or  equitable  cause  of  action. 
In  either  case  the  outcome  would  l)e  due  to  the  exercise  of  reason 


CHAP.  X]  UNION   ORGANIZERS   IN    NON-UNION   FIELDS  515 

and  free  will.  In  this  as  in  every  other  instance  of  antinomy,  of  con- 
flicting interests  and  mutually  restricting  rights,  the  rule  of  conduct 
is  that  each  side  shall  so  exercise  its  rights  as  not  to  injure  the  rights 
of  the  other.  Hitchman  Coal  Co.  v.  Mitchell,  245  U.  S.  229;  Ameri- 
can Steel  Foundries  v.  Tri-City  Central  Trades  Council,  257  U.  S.  — , 
42  Sup.  Ct.  72  (Dec.  5,  1921) ;  Respective  Rights  of  Capital  and  Labor 
in  Strikes,  5  Illinois  Law  Review,  453.  In  the  present  state  of  the  law, 
and  without  a  constitutional  exercise  of  the  legislative  power  of 
regulation,  appellee  had  no  greater  right  to  a  decree  suppressing  law- 
ful action  (such  as  the  publications,  speeches  and  personal  persuasions 
heretofore  mentioned  in  this  paragraph)  in  support  of  the  closed 
union  shop  program  than  appellants  had  to  a  similar  decree  suppress- 
ing similar  lawful  action  in  support  of  the  closed  non-union  shop 
program.      Neither  side  had  any  such  right. 

Appellee  sought  and  obtained  a  decree  enjoining  the  performance 
of  existing  contracts  between  the  operators  and  their  union  employees 
in  the  Central  Competitive  Field  with  respect  to  what  is  called  the 
check-off  provision.  So  far  as  the  contracts  themselves  and  this 
record  disclose,  the  check-off  is  the  voluntary  assignment  by  the 
employee  of  so  much  of  his  wages  as  may  be  necessary  to  meet  his 
union  dues,  and  his  direction  to  his  employer  to  pay  the  amount  to 
the  treasurer  of  his  union.  In  that  aspect  the  contract  provision  is 
legal,  and  quite  evidently  there  are  many  lawful  purposes  for  which 
dues  may  be  used.  If  in  truth  the  bargaining  with  respect  to  the 
contract  was  not  free,  if  either  the  employee  or  the  employer  put 
the  other  under  duress,  the  injured  party  might  have  cause  to  seek 
cancellation.  (But  if  he  had  nothing  to  urge  in  the  way  of  duress, 
except  "economic  necessity,"  he  might  not  succeed.)  If  in  bargain- 
ing one  of  the  parties  was  not  free  by  reason  of  the  greatly  prepon- 
derant power  of  the  other,  the  Legislatures  of  these  central  states 
and  the  Congress  might  consider  whether  public  interest  required  or 
justified  the  limitation  of  the  otherwise  existent  freedom  of  contract 
by  abolishing  the  check-off  as  a  subject-matter  of  contract,  in  simili- 
tude to  the  legislative  al)olition  of  truck  stores,  dangerous  apphances, 
unsanitary  working  places,  exhausting  hours,  etc.,  as  permissible 
subject-matters  of  contract.  But  appellee  is  not  a  party  to  the  con- 
tract, is  not  the  attorney  of  either  contracting  party,  and  is  not  the 
agency  to  establish  the  public  welfare. 

If  nothing  else  should  prevent  appellee's  being  given  that  part  of 
the  decree  now  under  consideration,  the  lack  of  injury  to  appellee 
by  the  existence  of  the  check-off  contracts  would  suffice.  The  injury 
to  appellee's  property  rights  in  interstate  commerce,  of  which  ap- 
pellee was  apprehensive,  was  that  it  would  be  coerced  into  paying 
the  high  costs  of  production  prevalent  in  the  Central  Competitive 
Field,  and  thus  be  unable  to  meet,  or  at  least  to  meet  so  profitably, 
the  existent  competition  in  interstate  commerce.  As  long  as  appellee 
is  assured,  as  it  now  is,  that  it  will  have  full  protection  in  operating 


516  UNION    ORGANIZERS   IN   NON-UNION   FIELDS  [CHAP.  X 

its  closed  non-union  mine  and  in  marketing  its  coal  in  interstate 
commerce  without  interference,  appellee  should  rather  pray  that  all 
the  elements  causing  high  cost  of  production  in  the  Central  Com- 
petitive Field  should  be  maintained. 

But  appellee  insists  that  it  is  entitled  to  have  the  performance 
of  the  existent  check-off  contracts  enjoined,  because  the  check-off  is 
the  "heart"  of  the  United  Mine  Workers'  Organization.  Appellee 
is  confusing  a  series  of  remote  causations  with  the  proximate  cause 
of  the  injury.  The  only  property  that  was  injured  was  appellee's 
freedom  in  operating  its  mine  and  in  putting  its  coal  onto  cars  in 
West  Virginia  to  be  shipped  in  interstate  commerce.  The  proximate 
cause  of  the  injury  was  the  described  interferences  in  the  William- 
son district  with  appellee's  aforesaid  right  to  freedom.  Without 
the  direct  and  immediate  interfering  acts,  the  desires  and  intents  of 
the  conspirators  in  the  Central  Competitive  Field  would  have  been 
innocuous.  In  the  series  of  causations  the  check-off  provision  was 
undoubtedly  one  of  the  elements.  Manifestly  unless  money  was 
collected,  the  union's  executive  officers  could  not  send  it  into  West 
Virginia  to  aid  or  promote  the  interfering  acts.  But  in  the  same 
contracts  that  contain  the  check-off  feature  were  provisions  for  the 
payment  of  wages  and  the  recognition  of  the  miners  as  human  beings 
with  the  physical  capacity  to  labor.  On  a  parity  with  appellee's 
contention  respecting  the  check-off  element,  all  the  other  elements 
in  the  series  of  causation  leading  up  to  the  proximate  cause  should 
also  be  enjoined.  Money  could  not  be  sent  into  West  \'irginia  by 
the  executive  officers,  unless  it  was  collected  from  the  miners'  wages; 
nor  unless  the  miners  earned  wages;  nor  unless  the  miners  were 
human  beings  having  the  capacity  to  labor. 

From  the  record  as  it  now  stands  we  are  convinced  that  the  Dis- 
trict Court  committed  substantial  errors  in  exercising  its  judicial 
discretion  in  the  following  particulars:  (1)  In  not  confining  the  grant 
of  relief  to  appellee;  (2)  in  not  limiting  the  prohibition  of  the  union- 
ization or  attempted  unionization  of  appellee's  mine  to  the  threat- 
ened direct  and  inmicdiate  interfering  acts  shown  by  the  bill  and 
affidavits;  (3)  in  not  limiting  the  prohibition  of  the  sending  of 
money  into  West  Virginia  to  the  use  thereof  in  aiding  or  promoting 
the  interfering  acts;  and  (4)  in  enjoining  the  performance  of  the  exist- 
ent check-off  contracts  in  the  Central  Competitive  Field. 

The  decree  should  be  recast,  and  for  that  purpose  the  cause  is 
remanded,  with  the  direction  to  the  District  Court  to  enter  a  pre- 
liminary injunction  decree  which  shall  be  in  consonance  with  this 
opinion. 


PART  II 

CHAPTER   XI 

CORPORATE    RIGHTS,  POWERS    AND    LIABILITIES 
OF  UNINCORPORATED  LABOR  UNIONS  ^ 

Section  1.    Suits  By  and  Against  Unincorporated  Labor  Unions 

ST.  PAUL  TYPOTHETiE  v.  ST.  PAUL  BOOKBINDERS' 
UNION  NO.  37 

Supreme  Court  of  Minnesota.     1905 
94  Minn.  351 

Brown,  J.  This  action  was  brought  by  the  St.  Paul  Typothetae, 
an  unincorporated  association  of  persons,  firms,  and  corporations 
engaged  in  the  business  of  printing  and  bookbinding,  and  the  West 
Pubhshing  Co.,  a  corporation  and  member  of  the  association,  against 
the  St.  Paul  Bookbinders'  Union  No.  37,  an  unincorporated  associa- 
tion of  printers  and  bookbinders,  and  the  members  thereof,  to  re- 
cover damages  for  an  alleged  breach  of  contract.  Separate  demurrers 
were  interposed  to  the  complaint,  one  by  the  Bookbinders'  Union, 
and  one  by  the  individual  members  thereof,  the  grounds  of  which 
are  (1)  that  plaintiff  St.  Paul  Typothetae  has  no  legal  capacity  to 
sue,  and  (2)  that  the  complaint  does  not  state  facts  sufficient  to  con- 
stitute a  cause  of  action  against  the  union  in  favor  either  of  the 
Typothetae  or  the  West  Publishing  Co.  The  demurrer  as  to  the  West 
Publishing  Co.  was  sustained,  but  overruled  as  to  the  Typothetae. 
Both  parties  appealed. 

The  complaint  alleges  that  the  persons,  firms,  and  corporations 
named  therein,  twenty-five  in  number,  are  associated  together  and 
doing  business  in  St.  Paul  under  the  name  and  title  of  "St.  Paul 
Typothetae";  that  each  of  the  said  persons,  firms,  and  corporations 
were  at  all  times  named  therein  engaged  in  publishing  and  book- 
binding, and  employers  of  such  printers  as  were  necessary  to  carry 

1  As  to  the  general  subject,  see  Machem,  Corporate  Personality,  24  H.  L.  R. 
253,  347;  Geldart,  The  Status  of  Trade  Unions  in  England,  25  H.  L.  R.  579; 
Laski,  The  Personality  of  Associations,  29  H.  L.  R.  404;  Wrightington,  Unin- 
corporated Associations,  Chapter  5.  For  a  brief  discussion  of  the  attitude  of  the 
Roman  law  toward  this  general  problem,  see  Sohm,  Institutes  of  Roman  Law 
(transl.  by  Ledlie)  (2d  ed.),  sees.  37,  38. 

517 


518  CORPORATE    FEATURES   OF   LABOR   UNION'S  [CHAP.  XI 

on  and  conduct  their  several  enterprises;  that  the  object  in  the 
formation  of  the  Typothetse  was  the  protection  and  promotion  of 
the  interests  of  its  several  members,  correcting  abuses,  promoting 
concerted  action,  reconciling  differences,  and  adjusting  contro- 
versies between  employer  and  employee,  and  particularly  in  securing 
definite,  stable,  and  harmonious  relations  between  the  various  mem- 
bers of  the  association  and  their  respective  employees.  It  further 
alleges  that  defendant  St.  Paul  Bookbinders'  Union  No.  37,  is  an 
unincorporated  association  composed  of  the  persons  named  therein, 
the  object  and  purpose  of  which  is  the  advancement  and  protection 
of  the  mutual  and  individual  interests  of  all  its  members  in  the  mat- 
ter of  employment,  labor,  and  wages,  and  especiall}^  the  regulation 
of  the  relations  between  employer  and  employee  in  the  bookbinding 
trade.  It  further  alleges  that  on  November  21,  1903,  plaintiff  St. 
Paul  Typothetse  and  defendant  Bookbinders'  Union,  for  a  valuable 
consideration,  by  and  through  their  officers  entered  into  a  certain 
contract,  a  copy  of  which  is  attached  to  and  made  a  part  of  the 
complaint. 

It  is  unnecessary  here  to  set  out  the  contract  in  full.  It  provides 
generally  the  terms  of  employment  between  the  firms  and  corpora- 
tions forming  the  Typothetse,  and  the  members  of  the  union;  classify- 
ing employees,  and  fixing  their  compensation  in  accordance  with 
the  nature  of  the  work  of  each,  and  specifying  generally  the  terms 
and  conditions  of  emplo3anent.  It  specially  provides  that  during 
the  life  of  the  contract  no  strike  or  lockout  shall  occur,  and  that 
any  differences  which  may  arise  as  to  the  construction  of  the  con- 
tract shall  be  settled  by  arbitration,  providing  the  parties  do  not 
reach  an  amicable  agreement.  The  complaint  alleges  a  breach  of 
this  contract  on  the  part  of  the  union  and  its  members;  that  the 
members  of  the  union  in  the  employ  of  the  West  Publishing  Co.,  a 
party  plaintiff  and  member  of  the  Typothetse,  went  out  on  a  strike 
without  cause  or  provocation,  and  without  a  submission  of  their 
grievance  to  arbitration,  to  the  great  damage  of  that  company. 
The  complaint  further  alleges  that  at  the  time  the  contract  was 
entered  into  it  was  well  known,  understood,  and  agreed  by  all  the 
parties  that  said  association,  St.  Paul  Typothetse,  was  not  an  em- 
ployer of  la])or,  and  did  not  intend  to  employ  any  labor  or  workmen 
what.soever,  and  that  each  and  all  the  provisions,  covenants,  condi- 
tions, and  agreements  in  said  contract  to  be  performed  and  kept  by 
the  union  and  its  members  were  made  for  the  benefit  of  each  and 
all  the  members  of  the  Typothetse  who  were  then  employing,  or 
should  thoi'oaftor  during  the  life  of  the  contract  employ,  workmen. 

The  only  (juestions  necessary  to  be  considered  on  this  apptvil  are 
(1)  whether  the  Typothetse  has  legal  capacity  to  sue,  and  (2)  whether 
the  complaint  states  a  cause  of  action  against  the  Bookbinders' 
Union.  Whether  the  complaint  states  a  cause  of  action  in  favor  of 
tlio   West  Publishing  Co.   against  the   iii(li\'i(lual   members  of  the 


SECT.  I]  SUITS   BY   AND    AGAINST   LABOR   UNIONS  519 

union  is  not  presented  by  the  demurrer.  And  whether  it  states  a 
cause  of  action  in  favor  of  that  company  against  the  union,  as  an 
organization,  is  determined  by  the  further  question  whether  the 
union  may  be  sued  in  its  association  name. 

The  Typothetae  and  Bookbinders'  Union,  so  far  as  their  legal 
status  is  concerned,  occupy  the  same  position.  Both  are  unincor- 
porated voluntary  associations,  and  the  principles  of  law  applicable 
generally  to  unincorporated  clubs  and  societies  appl}'  to  each.  The 
position  such  organizations  occupy  under  the  law  is  a  question  upon 
which  the  courts  are  not  fully  agreed.  It  is  generally  acknowledged 
that  they  are  sui  generis,  but  the  courts  have  had  difhtailty  in  agree- 
ing upon  the  legal  principles  to  apply  to  them.  Many  cases  hold 
that  in  some  of  their  relations  they  are  to  be  regarded  as  copartner- 
ships, and  governed  by  the  general  laws  applicable  to  that  relation, 
and  that  in  other  respects  the  law  of  corporations  applies  to  their 
affairs.  The  distinction  in  this  respect  is  made  (1)  as  to  cases  in- 
volving rights  between  the  association  and  third  parties  dealing 
with  it,  and  (2)  as  to  cases  involving  controversies  between  the 
members  respecting  the  property  owned  by  the  association.  Niblack, 
Ben.  Soc,  221.  Such  organizations  are  properly  divided  into  two 
classes,  viz.,  those  organized  for  the  purpose  of  conducting  some 
business  enterprise,  and  those  whose  purpose  is  solely  the  promotion 
of  the  interests  and  welfare  of  their  members,  unaccompanied  by 
any  business  functions.  As  to  this  class,  it  would  seem  that  the 
law  of  principal  and  agent  should  apply.  Ehrmanntraut  v.  Robin- 
son, 52  Minn.  333,  54  N.  W.  188. 

Both  the  Typothetae  and  the  union  come  within  this  class.  The 
Typothetae  is  not  a  business  association  within  the  proper  meaning 
of  the  term;  it  is  not  engaged  in  employing  labor,  or  entering  into 
trade  contracts  on  its  own  behalf.  Its  exclusive  occupation,  as  dis- 
closed by  the  complaint,  is  that  of  promoting  and  protecting  the 
persons,  firms,  and  corporations  composing  it  in  controversies  with 
their  employees,  and,  as  their  representative  or  agent,  entering  into 
on  their  behalf  contracts  with  such  employees.  So  far  as  the  com- 
plaint discloses,  it  has  no  capital  stock  and  no  property.  The  union 
is  an  association  of  employees  or  workmen  organized  for  similar 
purposes;  it  has  no  capital  stock  or  property;  its  members  do  not 
work  under  its  authority  or  in  its  behalf,  but  for  themselves. 

But  whatever  may  be  the  law  applicable  to  such  associations 
generally,  there  is  one  respect  in  which  the  authorities  are  agreed, 
and  that  is  that  at  common  law  they  are  not,  whether  organized  for 
business  or  other  purposes,  entitled  to  recognition  in  the  courts  in 
their  association  name.  It  is  well  settled  that,  in  the  absence  of  a 
statute  otherwise  providing,  to  be  entitled  to  conduct  judicial  pro- 
ceedings in  court,  a  party  litigant  must  be  either  a  natural  or  artificial 
person.  The  rule  is  correctly  stated  in  22  Enc.  PI.  &  Pr.  230,  where, 
in  speaking  of  unincorporated  societies,  such  as  those  here  involved, 


520  CORPORATE    FEATURES   OF   LABOR   UNIONS  [CHAP.  XI 

it  is  said  that  such  societies  cannot  maintain  an  action  in  their  asso- 
ciation name,  but  must  sue  in  the  name  of  the  individuals  composing 
them,  however  numerous  they  may  be.  Such  societies,  in  the  absence 
of  statutes  recognizing  them,  have  no  legal  entity  distinct  from 
that  of  their  members.  The  rule  is  followed  by  an  unbroken  line  of 
authorities,  though  a  different  rule  has  been  applied  in  many  of  the 
courts  in  actions  purelj'  of  an  equitable  nature.  On  the  question 
generally,  see  Niblack,  Ben  Soc.  183;  Richardson  v.  Smith,  21  Fla. 
336;  Mexican  v.  Yellow  Jack,  4  Nev.  40;  Detroit  v.  Detroit,  44 
Mich.  313,  6  N.  W.  675;  Danbury  v.  Bean,  54  N.  H.  524;  Mayer 
V.  Journeymen,  47  N.  J.  Eq.  519,  20  Atl.  492;  Nightingale  v.  Bar- 
ney, 4  G.  Greene  (Iowa),  106;  Barbour  v.  Albany  Lodge,  73  Ga.  474; 
Steamboat  Pembinaw  v.  Wilson,  11  Iowa,  479. 

The  rule  has  been  changed  and  modified  in  many  of  the  states 
by  statutory  enactments  permitting  such  associations  to  sue  and  be 
sued  in  their  adopted  name.  .  .  .  An  examination  of  the  authorities 
discloses  that  in  many  of  the  states  authority  is  expressh^  granted 
in  such  cases  to  sue  and  be  sued,  but  such  is  not  the  statute  in  this 
state.  The  Typothetse  comes  within  the  rule,  and  it  is  clear  that  it 
has  no  legal  capacity  to  sue. 

The  rule  applies  equally  to  defendant  Bookbinders'  Union.  That 
is  an  unincorporated  association  similar  to  the  Typothetse,  and 
cannot  be  sued  in  its  common  name.  Many  of  the  cases  above  cited 
were  actions  against  such  associations,  in  which  the  rule  of  the  com- 
mon law  was  applied.  See  also  22  Enc.  Pi.  &  Pr.  242,  where  it  is 
said  that  an  unincorporated  society  or  association,  being  considered 
at  common  law  a  copartnership,  cannot,  in  the  absence  of  statute,  be 
sued  in  its  society  or  association  name;  but  all  the  members  must 
be  made  parties,  since  such  associations  have,  in  the  absence  of 
statutory  recognition,  no  legal  entity  apart  from  their  members. 
This  rule  applies  to  the  union,  unless  it  comes  within  the  scope  of 
the  statute  providing  for  actions  against  persons  doing  business 
under  a  common  name.  The  statute,  it  is  clear,  was  not  intended 
to  include  associations  of  this  character.  Its  purpose  was  to  authorize 
the  courts  to  take  jurisdiction  over  unincorporated  associations 
engaged  under  a  common  name  in  some  sort  of  business  in  which 
property  is  bought  and  sold,  debts  contracted  —  concerns  owning 
and  holding  property,  and  incurring  pecuniar}^  liability  —  and  not 
associations  of  the  character  of  labor  unions,  having  no  property, 
engaged  in  no  business  occupation,  in  a  proper  sense  of  the  term, 
and  whose  only  function  is  the  promotion  of  the  interests  and  wel- 
fare of  the  persons  who  are  mcml^ers  thereof.  Sucii  an  association 
is  not  a  copartnership,  and  the  members  thereof  are  liable,  if  at  all, 
on  the  contracts  of  the  association  on  the  law  of  principal  and  agent. 
Ehrmaniitraut  r.  Robinson,  52  Minn.  335.  54  N.  W.  ISS.  It  is  not 
a  copartnership,  l^ecause  the  association  is  engaged  in  no  business 
enterpri.se.  .  .  . 


SECT.  I]  SUITS   BY   AND    AGAINST   LABOR   UNIONS  521 

We  have  been  cited  to  no  case  where  the  court  has  entertained  an 
action  of  this  kind  against  an  association  in  its  common  name,  where 
the  point  has  been  raised,  and  our  research  has  disclosed  but  one, 
the  Taff  Vale  case,  which  arose  in  England  in  1901.  Taff  Vale  v. 
Amalgamated,  L.  R.  App.  ('as.  1901,  426.  It  was  there  held  that 
an  association  of  employees,  similar  to  that  of  the  Bookbinders' 
Union,  might  be  sued  in  its  common  name.  But  the  decision  was 
placed  squarely  upon  the  ground  that  such  associations  are  expressly 
recognized  and  their  organization  provided  for  by  act  of  parliament, 
and,  though  the  act  authorizing  their  organization  did  not  expressly 
provide  that  they  might  sue  or  be  sued,  the  court  held  that  the  right 
arose  by  necessary  implication  from  the  fact  of  legislative  recogni- 
tion and  the  provision  of  the  law  empowering  the  association  to  own 
■and  hold  property.  Many  cases  have  been  found  where  injunctions 
have  been  issued  restraining  labor  unions,  their  officers  and  members, 
from  threatened  violations  of  the  law,  but  cases  of  that  nature  are 
not  in  point. 

It  follows  that  the  Typothetae  has  no  legal  capacity  to  sue,  and 
cannot  maintain  the  action;  that  the  Bookbinders'  Union  cannot  be 
sued  in  its  association  name,  and  neither  the  Typothetse  nor  the 
West  Publishing  Co.  can  maintain  the  action  against  it.  Whether, 
within  the  rule  announced  by  this  court  in  Ehrmanntraut  v.  Robin- 
son, supra,  on  the  law  of  principal  and  agent,  a  cause  of  action  is 
stated  in  favor  of  the  West  Publishing  Co.  against  the  individual 
members  of  the  union,  is  not  presented,  and  we  do  not  determine  it. 
The  demurrer  interposed  by  the  individual  members  of  the  union 
does  not  raise  the  question,  and  we  leave  it  for  future  consideration, 
should  it  ever  arise. 

The  order  of  the  court  below  overruling  the  demurrer  as  to  the 
Typothetae  is  reversed;  that  sustaining  the  demurrer  as  to  the  West 
Publishing  Co.  against  the  union,  as  such,  is  affirmed.^ 

1  Accord:  American  Steel  &  Wire  Co.  v.  American  Wire  Drawers',  etc.,  Union, 
90  Fed.  598;  Grand  Int.  Brotherhood  of  Locomotive  Engineers  v.  Green,  89  So. 
(Ala.)  435;  Raskins  v.  United  Mine  Workers  of  America,  234  S.  W.  (Ark.)  464; 
Agricultural  Extension  Club  v.  Hirsch,  179  Pac.  (Cal.)  430;  Karges  Furniture 
Co.  V.  Amalgamated  Woodworkers'  Local  Union,  165  Ind.  421;  Diamond  Block 
Coal  Co.  V.  United  Mine  Workers,  188  Ky.  477;  Pickett  v.  Walsh,  192  Mass.  572, 
589;  Cleland  v.  Anderson,  66  Neb.  252;  Branson  v.  Industrial  Workers  of  the 
World,  30  Nev.  270;  Mayer  v.  Journeymen  Stonecutters'  Assn.,  47  N.  J.  Eq. 
519,  520;  McMahon  v.  Rauhr,  47  N.  Y.  67;  Hanke  v.  Cigar  Makers'  Interna- 
tional Union,  27  Misc.  (N.  Y.)  529;  Simpson  v.  Grand  International  Brotherhood, 
83  W.  Va.  355. 

Waiver  of  Objection.  In  Iron  Molders'  Union  v.  AUis-Chalmers  Co.,  166 
Fed.  45,  at  p.  48,  Baker,  J.,  said:  "No  Wisconsin  statute  authorized  an  unin- 
corporated voluntary  association  to  be  sued  in  its  common  name.  So  the  objec- 
tion might  have  prevailed  if  it  had  been  seasonably  made.  Karges  Furniture  Co. 
V.  Amalgamated  Woodworkers'  Union,  165  Ind.  421,  75  N.  E.  877,  2  L.  R.  A. 
(n.  s.)  788;  Pickett  v.  Walsh,  192  Mass.  572,  78  N-  E.  753,  6  L.  R.  A.  (n.  s.) 
1067,  116  Am.  St.  Rep.  272.  But  the  members  could  have  been  reached,  of  course, 
either  by  naming  and  serving  them  all,  or,  if  that  were  impracticable  on  account 


522  CORPORATE    FEATURES    OF   LABOR   UNIONS  [CHAP.  XI 

UNITED  STATES  HEATER  CO.  v.  IRON  HOLDERS' 

UNION 

Supreme  Court  of  Michigan.     1902 

129  Mich.  354 

Bill  by  the  United  States  Heater  Co.  against  the  Iron  Molders' 
Union  of  North  America  and  others  to  enjoin  interference  with  the 
conduct  of  complainant's  business.  From  an  order  refusing  to  dis- 
solve a  temporary  injunction,  and  overruling  a  plea  to  the  jurisdic- 
tion, defendants  appeal.  .  .  . 

'Moore,  J.  .  .  .  A  preliminary  writ  of  injunction  was  issued 
against  all  the  defendants;  the  language  used  in  the  injunction  fol- 
lowing that  used  in  the  case  of  Beck  v.  Protective  Union,  118  Mich. 
497  (77  N.  W.  13,  42  L.  R.  A.  407,  74  Am.  St.  Rep.  421).  A  refer- 
ence to  that  case  will  make  it  unnecessary  to  set  out  more  of  the 
injunction  here. 

Certain  of  the  defendants  interposed  a  plea,  the  essential  parts  of 
which  are  as  follows: 

"The  plea  of  the  Iron  Holders'  Union  of  North  America,  an  unin- 
corporated society,  and  its  officers  and  members.  Local  Union  No. 
31  of  the  Iron  Holders'  Union  of  North  America,  and  its  officers 
and  members,  Local  Union  No.  244  of  the  Iron  Holders'  Union  of 
North  America,  and  its  officers  and  members,  a  part  of  the  above- 
named  defendants,  to  the  bill  of  complaint  of  the  LTnited  States 
Heater  Co.,  a  Michigan  corporation: 

"These  defendants,  and  each  of  them,  specially  appear  in  this 
court,  and  file  this  their  joint  and  several  plea  to  the  bill  of  com- 
plaint filed  in  this  cause,  and  .  .  .  say  that  they,  nor  either  of 
them,  are  a  legal  body  capable  of  suing  or  being  sued  by  the  laws 
of  the  State  of  Michigan,  nor  of  any  other  state  or  country  in  this 
world,  and  therefore  not  capable  of  being  subjected  to  this  suit  by 
law  in  any  but  their  individual  members'  names.  The  complainant 
having  averred  that  these  pleading  defendants  are  but  a  voluntary 
association  of  citizens  throughout  the  United  States  and  the  Domin- 
ion of  Canada,  and  therefore  not  subject  to  suit,  therefore  these  so- 
called  defendants,  who  have  no  legal  form,  shape,  or  substance,  and 
who  are  not,  as  voluntary,  unincorporated  societies,  subject  to  be 

of  their  numbers,  by  suing  some  as  representatives  of  all.  The  bill  treated  the 
unions  as  representative  of  their  nicmhcrsliip;  an  iiulividual  moinl)er  filed  a  veri- 
fied answer  in  the  names  of  the  unions,  alleging  that  he  had  been  authorized  by 
them  so  to  do;  and  the  case  was  carried  through  three  hearings  (temporary  in- 
junction, contempt,  final  decree)  without  a  suggestion  that  there  was  a  defect  of 
parties,  or  rather  a  defect  in  the  form  imder  which  apjx'llee  asked  to  have  the 
membership  of  the  unions  brought  into  court.  An  objection  of  this  kind  will  not 
be  entertained  on  appeal  unless  it  has  been  first  duly  presented  in  the  trial  court. 
Barnes  v.  Chicago  TyjKJgraphical  Union,  2:i2  111.  424,  83  N.  E.  940,  14  L.  II.  A. 
(n.  8.)  1018." 


SEC.  I]  SUITS   BY   AND    AGAINST   LABOR   UNIONS  523 

sued  as  a  single  individual,  do  plead  their  said  want  of  legal  capacity 
in  bar  to  complainant's  bill  of  conij)laint."  .  .  . 

We  now  come  to  the  question,  Was  the  court  right  in  overruling 
the  plea?  Section  1  of  Act  No.  25  of  the  Public  Acts  of  1897  reads 
as  follows: 

"Sec.  1.  The  People  of  the  State  of  Michigan  enact,  That  when- 
ever any  unincorporated  voluntary  association,  club,  or  society 
shall  be  formed  in  this  State,  composed  of  five  members  or  more, 
having  some  distinguishing  name,  actions  at  law  or  in  chancery  may 
be  brought  by  or  against  such  association,  club,  or  society  by  the 
name  by  which  it  is  known:  Provided,  that  this  act  shall  not  take 
away  the  right  of  the  litigant  to  proceed  against. all  the  members  of 
such  association,  club,  or  society,  if  such  litigant  shall  so  elect  to 
proceed." 

This  provision  of  the  statute  would  seem  to  answer  the  question 
in  the  affirmative.  Counsel  says  the  legislature  had  no  right  to  pass 
such  a  law.    His  position  stated  in  the  brief  is: 

"Now,  this  raises  the  question,  flatly  put,  of  the  ability  of  the  law- 
making power  to  authorize  suits  to  be  maintained  against  nothing. 
Second,  if  it  may,  has  the  law  been  complied  with  in  this  case?  And, 
first,  am  I  not  correct  in  assuming  that  there  must  be  a  person  or 
thing  about  which  a  suit  is  to  be  maintained?  Would  a  law  authoriz- 
ing suits  to  be  maintained  against  the  air,  the  sun,  moon,  or  stars, 
be  effective?  This  law  does  not  give  these  associations,  clubs,  or 
societies  any  legal  standing,  nor  make  them  persons  or  legal  entities. 
They  cannot  bring  suit  in  the  club,  association,  or  society  name. 
When  they  sue  they  must  sue  as  a  copartnership,  under  well-recog- 
nized legal  rules.  The  person  who  seeks  to  deal  with  them  can,  by 
the  provisions  of  this  act,  still  hold  them  as  copartners,  and  there- 
fore would  seem  to  have  two  remedies,  while  the  club,  society,  or 
association  has  only  one.  The  only  object  of  this  law  is  to  hold  by 
injunctions  men  who  may  or  may  not  be  citizens  of  this  State.  It 
is  very  clever  in  the  use  to  which  it  is  put.  In  other  words,  no  mat- 
ter what  the  original  object  of  the  act,  it  can  only  be  effectively 
used  against  what  is  known  as  '  organized  labor.'  " 

We  do  not  see  the  same  difficulties  in  the  law  or  its  provisions 
which  are  seen  by  counsel.  The  law  deals  with  conditions  as  they 
exist.  It  recognized  that  there  may  be  unincorporated  voluntary 
associations,  clubs,  and  societies  in  this  State  which  do  or  may  do 
things  which  make  it  desirable  for  them  to  have  the  right  to  bring 
actions  at  law  or  in  chancery,  and  also  that  it  may  be  necessary 
or  desirable  to  make  them  defendants  in  an  action  at  law  or  pro- 
ceeding in  chancery.  If  the  allegations  contained  in  the  bill  of  com- 
plaint in  this  case  are  true,  the  wisdom  of  such  legislation  is  made 
apparent. 

There  is  nothing  in  the  provisions  of  the  law  which  indicates  it  is 
aimed  at  organized  labor.     There  is  hardly  a  town,  village,  or  city, 


524  CORPORATE    FEATURES   OF   LABOR   UNIONS  [CHAP.  XI 

or  a  college  or  university,  in  this  State,  which  has  not  its  voluntary 
associations,  clubs,  or  societies,  to  which  the  provisions  of  the  law 
would  apply. 

It  is  for  the  legislature  to  determine  who  may  sue  and  be  sued, 
so  long  as  it  does  not  interfere  with  vested  rights  or  deny  any  remedy. 

"As  a  general  rule,  every  State  has  complete  control  over  the 
remedies  which  it  offers  to  suitors  in  its  courts.  It  may  abolish  one 
class  of  courts,  and  create  another.  It  may  give  a  new  and  additional 
remedy  for  a  right  or  equity  already  in  existence.  And  it  may  abolish 
old  remedies  and  substitute  new.  .  .  .  And  any  rule  or  regulation 
in  regard  to  the  remedy  which  does  not,  under  pretense  of  modifying 
or  regulating  it,  take  away  or  impair  the  right  itself,  cannot  be  re- 
garded as  beyond  the  proper  province  of  legislation."  Coole}^  Const. 
Lim.  (6th  ed.)  442. 

The  appeal  is  dismissed  as  to  that  part  of  the  order  refusing  to  dis- 
solve the  injunction.  As  to  that  part  of  the  order  overruling  the 
plea,  the  action  of  the  court  below  is  affirmed. 

Hooker,  C.  J.,  Gil\nt  and  Montgomery,  JJ.,  concurred.  Long, 
J.,  did  not  sit. 

GUILFOIL  V.  ARTHUR 

Supreme  Court  of  Illinois.     1895 

158  III.  600 

Appeal  from  the  Circuit  Court  of  Coles  county;  the  Hon.  Francis 
M.  Wright,  J.,  presiding. 

This  was  a  bill  in  equity,  brought  by  P.  M.  Arthur  and  others, 
grand  officers  of  the  Grand  International  Brotherhood  of  Locomo- 
tive Engineers,  against  John  H.  Guilfoil.  It  is  alleged,  in  substance, 
in  the  bill,  among  other  things,  that  certain  real  estate  in  Coles 
county,  Illinois,  was  conveyed  by  deed,  on  August  2,  1886,  by  Mary 
J.  Mitten  to  John  H.  Guilfoil,  in  trust  for  the  widows  and  orphans 
of  deceased  members  of  the  Brotherhood  of  Locomotive  Engineers, 
and  under  such  rules  and  regulations  as  shall  be  provided  by  the 
brotherhood;  that  the  rental  value  of  said  property  is  $1000  per 
year  over  and  above  taxes,  repairs,  etc.;  that  John  H.  Guilfoil  en- 
tered into  the  possession  of  said  property  immediately  after  such 
conveyance,  with  his  family;  that  he  has  received  the  uses,  rents,  and 
profits  thereof  and  converted  them  to  his  own  use;  that  he  refuses 
to  account  to  the  officers  of  said  brotherhood  for  such  rents,  or  any 
part  thereof;  that  Guilfoil,  as  such  trustee,  has  mismanaged  said 
estate,  is  committing  waste  thereon,  and  that  he  is  insolvent,  and 
prays  that  he  may  be  removed  as  such  trustee;  that  a  trustee  be 
api)ointed  by  the  court  to  take  charge  of  said  property;  that  an 
account  be  taken  of  the  rents  and  profits  received  by  Guilfoil  from 
said  estate,  and  a  decree  therefor,  etc.  .  .  . 


SECT,  I]  SUITS   BY   AND   AGAINST   LABOR   UNIONS  525 

On  the  hearing  the  court  found  the  allegations  of  the  bill  true 
that  said  Grand  International  Brotherhood  of  Locomotive  Engineers 
is  an  organized  body,  with  constitution  and  by-laws,  etc.  A  decree 
was  rendered  removing  Guilfoil  as  trustee  and  appointing  William 
Burgess  trustee  of  said  property,  etc.,  for  the  uses  and  purposes,  etc., 
with  bond  at  $20,000;  orders  and  adjudges  that  said  Guilfoil  pay  to 
said  Burgess,  as  trustee,  $3652,  as  found  by  the  court  to  be  due  from 
him;  that  said  Guilfoil  deliver  up  possession  of  said  premises  to  said 
Burgess,  and  that  said  Guilfoil,  within  twenty  days,  execute  and 
deliver  to  said  Burgess  a  proper  and  sufficient  conveyance  of  said 
premises,  and  in  default  thereof  that  the  master  make  such  deed.  .  .  . 

Mr.  Chief  Justice  Craig  delivered  the  opinion  of  the  court:  .  .  . 

Guilfoil  entered  into  possession  of  the  lands  conveyed  under  the 
deed.  He  has  received  the  rents  and  profits  ever  since,  but  has  failed 
to  account  for  the  rents,  and  has  suffered  the  property  to  run  down. 
The  Brotherhood  of  Locomotive  Engineers,  by  resolutions  duly 
adopted,  accepted  the  conveyance  for  the  uses  and  purposes  named 
in  the  deed,  but  Guilfoil  has  absolutely  refused  to  hold  and  manage 
the  property  as  contemplated  by  the  deed  or  as  required  by  the 
rules  and  regulations  adopted  by  the  brotherhood.  Indeed,  he  has 
ignored  the  trust,  and  holds  the  property  in  defiance  of  the  terms 
and  conditions  of  the  deed  upon  which  he  received  it.  Under  such 
circumstances,  was  the  decree  removing  Guilfoil  as  trustee  authorized, 
or  was  it  erroneous?  .  .  . 

It  is  said  in  argument  that  the  brotherhood  is  not  a  corporate 
body,  and  cannot  sue  or  be  sued,  and  having  no  power  to  sue  or  be 
sued  it  cannot  authorize  any  of  its  members  or  officers  to  bring  this 
action,  and  hence  the  bill  cannot  be  maintained  by  complainants. 
The  brotherhood  is  an  organized  body,  with  a  constitution  and  by- 
laws, but  was  never  incorporated.  At  common  law  a  voluntary 
association  not  incorporated  cannot  sue  or  be  sued.  But  this  action 
was  not  brought  in  the  name  of  a  voluntary  association,  and  the 
rule  excluding  such  associations  from  suing  or  being  sued  has  no 
application  in  this  case.  It  is  a  general  rule,  and  one  well  understood, 
that  all  persons  interested  in  the  subject  matter  of  the  litigation 
should  be  made  parties  complainant  or  defendant.  But  there  are 
exceptions  to  this  general  rule.  In  sec.  97  of  Story's  Equity  Plead- 
ing, in  speaking  on  this  subject,  the  author  says:  "The  most  usual 
cases  assigning  themselves  under  this  head  of  exceptions  are,  (1) 
where  the  question  is  one  of  a  common  or  general  interest,  and  one 
or  more  may  sue  or  defend  for  the  benefit  of  the  whole;  (2)  where 
the  parties  form  a  voluntary  association  for  public  or  private  pur- 
poses, and  those  who  sue  or  defend  may  fairly  be  presumed  to  repre- 
sent the  rights  and  interests  of  the  whole;  (3)  where  the  parties 
are  very  numerous,  .  .  .  and  it  is  impracticable  to  bring  them  all 
before  the  court."     In  sec.  107,  in  the  discussion  of  the  second  class 


526  CORPORATE    FEATURES    OF    LABOR   UNIONS  [CHAP.  XI 

of  cases,  where  the  persons  in  interest  are  numerous,  it  is  said:  "As 
there  is  privity  of  interest  the  court  will  allow  a  bill  to  be  brought 
by  some  of  the  parties  in  behalf  of  themselves  and  of  all  the  others, 
taking  care  that  there  shall  be  due  representation  of  all  substantial 
interest  before  the  court."  In  Beatty  v.  Kuntz,  2  Pet.  584,  where  a 
bill  was  brought  by  and  in  the  name  of  a  committee  of  a  voluntary 
society,  regularl}^  appointed  for  the  purpose  of  protecting  certain 
property,  it  was  held  that  complainants  were  entitled  to  maintain 
the  bill.  It  is  there  said:  "If  they  (the  complainants)  are  proved 
to  be  the  regularly  appointed  committee  of  a  voluntary  society  of 
Lutherans  in  actual  possession  of  the  premises,  and  acting  by  their 
direction  to  prevent  a  disturbance  of  that  possession,  under  cir- 
cumstances like  those  stated  in  the  bill  we  do  not  see  any  serious 
objection  to  their  right  to  maintain  the  suit."  See  also,  Mears  v. 
Moulton,  30  Md.  145;  PhiUips  v.  Jones,  20  Pa.  St.  263;  2  Beach  on 
Private  Corp.  sees.  901,  902;  Birmingham  v.  Gallagher,  112  Mass. 
190;  Lloyd  v.  Loring,  6  Ves.  773. 

Here,  as  has  been  seen,  the  real  estate  was  conveyed  in  trust  for 
the  widows  and  orphans  of  deceased  members  of  the  Brotherhood  of 
Locomotive  Engineers,  with  power  conferred  on  the  brotherhood 
to  dispose  of  the  property  for  the  uses  and  purposes  specified.  The 
organization  appointed  a  committee  to  look  after  the  property, 
with  authority  to  employ  counsel,  and  sell  the  lands,  etc.  This 
committee  instituted  suit  in  the  name  of  the  complainants,  officers 
of  the  Brotherhood  of  Locomotive  Engineers,  to  enforce  the  trust, 
and  the  action  of  the  committee  having  been  reported  to  the  asso- 
ciation, the  institution  of  the  suit  in  the  names  of  the  complainants 
was  ratified  and  confirmed.  It  thus  appears  that  the  action  was 
brought  in  the  names  of  the  complainants  for  and  in  behalf  of  the 
members  of  the  organization,  the  Brotherhood  of  Locomotive  En- 
gineers. From  the  allegations  of  the  bill,  and  from  the  evidence  in- 
troduced in  its  support,  it  is  plain  that  the  complainants  are  not 
suing  in  their  own  interest,  but,  on  the  other  hand,  the  sole  object 
of  the  bill  is  to  enforce  the  trust  and  save  the  property  involved  for 
the  members  of  the  brotherhood.  The  bill  might  have  been  brought 
in  the  names  of  all  the  members  of  the  Brotherhood  of  Locomotive 
Engineers,  as  persons  jointly  interested  in  the  property;  but  where 
the  members  of  an  unincorporated  association  are  numerous,  as  is 
the  case  here,  the  action  may  be  brought  in  the  names  of  a  portion 
of  the  members,  who  sue  for  themselves  and  in  behalf  of  all  the  other 
members,  or,  as  was  done  in  Beatty  v.  Kuntz,  supra,  the  action  may 
be  maintained  in  the  name  of  a  committee  of  persons  angularly  ap- 
pointed by  the  organization.  The  allegations  of  the  bill  are  not  as 
specific  and  definite  in  regard  to  the  capacity  in  wiiich  the  com- 
plainants sue,  if  tested  by  a  technical  rule,  as  they  should  be;  but 
when  all  the  allegations  of  the  bill  and  ameudcd  bill  are  considered, 


SECT.  I]  SUITS   BY   AND    AGAINST   LABOR   UNIONS  527 

we  think  the  capacity  in  which  the  complainants  sue  sufficiently 
appears.  .  .  . 

The  decree  of  the  Circuit  Court  will  be  affirmed. 

Decree  affirmed} 


FEDERAL  EQUITY  RULE  No.  38 

226  U.  S.  659 
REPRESENTATIVES   OF    CLASS 

When  the  question  is  one  of  common  or  general  interest  to  many 
persons  constituting  a  class  so  numerous  as  to  make  it  impracticable 
to  bring  them  all  before  the  court,  one  or  more  may  sue  or  defend 
for  the  whole. ^ 

TAFF  VALE   RAILWAY  CO.  v.  AMALGAMATED   SOCIETY 

OF  RAILWAY  SERVANTS 

House  of  Lords.     1901 

[1901]  A.  C.  426 

A  strike  having  arisen  in  August,  1900,  among  the  appellants' 
servants,  in  which  Bell,  the  general  secretary  of  the  respondent 
society,  and  Holmes,  the  organising  secretary  thereof  for  the  West 
of  England,  took  part,  the  appellants  brought  an  action  against  the 
respondent  society  in  its  registered  name,  and  against  Bell  and 
Holmes,  claiming  an  injunction  and  such  further  relief  as  the  Court 
might  direct.  A  summons  for  an  interim  injunction  having  been 
taken  out  by  the  plaintiffs,  and  a  notice  of  motion  having  been 
given  by  the  respondents  to  strike  out  the  name  of  the  defendant 
society,  Farwell,  J.,  sitting  as  vacation  judge,  on  the  5th  September, 
1900,  dismissed  the  respondents'  application,  and  granted  an  interim 
injunction  against  the  society  in  terms  similar  to  those  of  the  in- 
junction previously  granted  against  Bell  and  Holmes,  restraining 
the  society,  their  servants,  agents,  and  others  acting  by  their  author- 
ity from  watching  or  besetting  or  causing  to  be  watched  or  beset 

1  Accord:  Hetterman  Bros.  &  Co.  v.  Powers,  102  Ky.  133;  Birmingham  v. 
Gallagher,  112  Mass.  190;  Snow  v.  Wheeler,  113  Mass.  179.  Similarly  it  has  been 
held  that  in  an  action  in  equity  against  a  voluntary  unincorporated  organiza- 
tion where  the  members  comprising  the  same  are  numerous,  such  organizations 
may  be  made  parties  to  an  action  where  a  few  of  the  members  thereof  are  made 
defendants  for  the  purpose  of  representing  the  organization.  St.  Germain  v. 
Bakery  &  Confectionery  Workers'  Union,  97  Wash.  282,  294;  Pickett  v.  Walsh, 
192  Mass.  572,  589,  590;  Reynolds  v.  Davis,  198  Mass.  294,  300,  301;  Branson 
V.  Industrial  Workers  of  the  World,  30  Nev.  270,  288,  289  (semble) ;  Seattle  Brew- 
ing Co.  V.  Hanson,  144  Fed.  1011.  Compare  Flaherty  v.  Benevolent  Society, 
99  Me.  253. 

^  Promulgated  by  the  Supreme  Court  of  the  United  States,  Nov.  4, 1912.  —  Ed. 


528  CORPORATE    FEATURES   OF   LABOR   UNIONS  [CHAP.  XI 

the  Great  Western  Railway  Station  at  Cardiff,  or  the  works  of  the 
plaintiffs  or  any  of  them,  or  the  approaches  thereto,  or  the  places  of 
residence,  or  any  place  where  thej^  might  happen  to  be,  of  any  work- 
man employed  or  proposing  to  work  for  the  plaintiffs,  for  the  pur- 
pose of  persuading  or  otherwise  preventing  persons  from  working 
for  the  plaintiffs,  or  for  any  purpose  except  merely  to  obtain  or  com- 
municate information,  and  from  procuring  any  persons  who  had  or 
might  enter  into  any  contracts  with  the  plaintiffs  to  commit  a  breach 
of  such  contracts.    The  following  judgment  was  delivered  by 

Farwell,  J.  The  defendant  society  have  taken  out  a  summons 
to  strike  out  their  name  as  defendants,  on  the  ground  that  they  are 
neither  a  corporation  nor  an  individual,  and  cannot  be  sued  in  a 
quasi-corporate  or  any  other  capacity.  Failing  this,  they  contend 
that  no  injunction  ought  to  be  granted  against  them.  I  reserved 
judgment  last  week  on  these  two  points,  because  the  first  is  of  very 
great  importance,  and  counsel  were  unable  to  assist  me  by  citing 
any  reported  case  in  which  the  question  had  been  argued  and  de- 
cided. 

Now  it  is  undoubtedly  true  that  a  trade  union  is  neither  a  corpora- 
tion, nor  an  individual,  nor  a  partnership  between  a  number  of  in- 
dividuals; but  this  does  not  by  any  means  conclude  the  case.  A 
trade  union,  as  defined  by  sec.  16  of  the  Trade  Union  Act,  1870, 
"means  any  combination,  whether  temporary  or  permanent,  for 
regulating  the  relations  between  workmen  and  masters,  or  between 
workmen  and  workmen,  or  between  masters  and  masters,  or  for  im- 
posing restrictive  conditions  on  the  conduct  of  anj^  trade  or  business, 
whether  such  combination  would  or  would  not,  if  the  principal  Act 
had  not  been  passed,  have  been  deemed  to  have  been  an  unlawful 
combination  by  reason  of  some  one  or  more  of  its  purposes  being  in 
restraint  of  trade."  It  is  an  association  of  men  which  almost  in- 
variably owes  its  legal  validity  to  the  Trade  Union  Acts,  1871  and 
1876.  In  the  present  case  the  foundation  of  the  argument  that  1 
have  heard  on  behalf  of  the  society  is  that  it  is  an  illegal  association 
—  an  argument  that  would  have  more  weight  if  the  action  related 
to  the  enforcement  of  any  contract,  and  were  not  an  action  in  tort. 
The  questions  that  I  have  to  consider  are  what,  according  to  the 
true  construction  of  the  Trade  Union  Acts,  has  the  Legislature  en- 
abled the  trade  unions  to  do,  and  what,  if  any,  liability  does  a  trade 
union  incur  for  wrongs  done  to  others  in  the  exercise  of  its  authorized 
powers?  The  Acts  commence  by  legalising  the  usual  trade  union 
contracts,  and  proceed  to  establish  a  registry  of  trade  unions,  give 
to  each  trade  union  an  exclusive  right  to  the  name  in  which  it  is 
registered,  authorise  it  through  the  medium  of  trustees  to  own  a 
limited  amount  of  real  estate,  and  unlimited  personal  estate  "for 
the  use  and  benefit  of  such  trade  union  and  the  members  thereof"; 
provide  that  it  shall  have  officers  and  treasurers,  and  render  them 
liable  to  account;  require  that  annual  returns  be  made  to  the  registry 


SECT.  I]  SUITS   BY   AND   AGAINST   LABOR   UNIONS  529 

of  the  assets  and  liabilities  and  receipts  and  expenditure  of  the  soci- 
ety; provide  that  it  shall  have  rules  and  a  registered  office,  imposing 
a  penalty  on  the  trade  union  for  non-compliance;  and  permit  it 
to  amalgamate  with  other  trade  unions,  and  to  be  wound  up.  The 
funds  of  the  society  are  appropriated  to  the  purposes  of  the  society, 
and  their  misappropriation  can  be  restrained  by  injunction:  Wolfe 
V.  Matthews,  (1882)  21  Ch.  D.  194;  and  on  a  winding-up,  such  funds 
are  distributed  amongst  the  members  in  accordance  with  the  rules 
of  the  society:  Strick  v.  Swansea  Tinplate  Co.,  (1887)  36  Ch.  D. 
558.  .  .  .  Now,  although  a  corporation  and  an  individual  or  in- 
dividuals may  be  the  only  entity  known  to  the  common  law  who 
can  sue  or  be  sued,  it  is  competent  to  the  Legislature  to  give  to  an 
association  of  individuals  which  is  neither  a  corporation  nor  a  part- 
nership nor  an  individual  a  capacity  for  owning  property  and  act- 
ing by  agents,  and  such  capacity  in  the  absence  of  express  enactment 
to  the  contrary  involves  the  necessary  correlative  of  liability  to  the 
extent  of  such  property  for  the  acts  and  defaults  of  such  agents. 
It  is  beside  the  mark  to  say  of  such  an  association  that  it  is  unknown 
to  the  common  law.  The  Legislature  has  legalised  it,  and  it  must  be 
dealt  with  by  the  Courts  according  to  the  intention  of  the  Legisla- 
ture. For  instance,  a  lease  in  perpetuity  is  unknown  at  common 
law,  but  such  a  lease  granted  by  one  railway  company  to  another 
when  confirmed  by  the  Legislature  becomes  valid  and  binding  (see 
Sir  George  Jessel's  judgment  in  Sevenoaks,  etc.,  Ry.  Co.  v.  London, 
Chatham  and  Dover  Ry.  Co.,  (1879)  11  Ch.  D.  625,  635);  nor  can  it 
be  said  for  this  purpose  that  the  association  is  illegal,  for  the  Legis- 
lature by  sees.  2  and  3  of  the  Act  of  1871  has  rendered  legal  the 
usual  purposes  of  a  trade  union,  and  has  further  enabled  the  trade 
union  to  carry  into  effect  those  purposes  by  the  provisions  to  which 
I  have  already  referred.  This  is  not  a  case  of  suing  in  contract  to 
which  the  provisions  of  sec.  4  of  the  Act  would  apply;  it  is  an  action 
in  tort,  and  the  real  question  is  whether  on  the  true  construction  of 
the  Trade  Union  Acts  the  Legislature  has  legalised  an  association 
which  can  own  property  and  can  act  by  agents  by  intervening  in 
labour  disputes  between  employers  and  employed,  but  which  can- 
not be  sued  in  tort  in  respect  of  such  acts. 

Now,  the  Legislature  in  giving  a  trade  union  the  capacity  to  own 
property  and  the  capacity  to  act  by  agents  has,  without  incorporat- 
ing it,  given  it  two  of  the  essential  qualities  of  a  corporation  —  essen- 
tial, I  mean,  in  respect  of  liability  for  tort,  for  a  corporation  can 
only  act  by  its  agents,  and  can  only  be  made  to  pay  by  means  of  its 
property.  The  principle  on  which  corporations  have  been  held 
liable  in  respect  of  wrongs  committed  by  its  servants  or  agents  in 
the  course  of  their  service  and  for  the  benefit  of  the  employer  —  qui 
sentit  commodum  sentire  debet  et  onus  —  (see  Mersey  Docks  Trustees 
V.  Gibbs,  (1866)  L.  R.  1  H.  L.  93),  is  as  apphcable  to  the  case  of  a 
trade  union  as  to  that  of  a  corporation.     If  the  contention  of  the 


530  CORPORATE    FEATURES   OF   LABOR   UNIONS  [CHAP.  XI 

defendant  society  were  well  founded,  the  Legislature  has  authorised 
the  creation  of  numerous  bodies  of  men  capable  of  owning  great 
wealth  and  of  acting  by  agents  with  absolutely  no  responsibility 
for  the  wrongs  that  they  may  do  to  other  persons  by  the  use  of  that 
wealth  and  the  employment  of  those  agents.  They  would  be  at 
liberty  (I  do  not  at  all  suggest  that  the  defendant  society  would  so 
act)  to  disseminate  libels  broadcast,  or  to  hire  men  to  reproduce 
the  rattening  methods  that  disgraced  Sheffield  thirty  or  forty  years 
ago,  and  their  victims  would  have  nothing  to  look  to  for  damages 
but  the  pockets  of  the  individuals,  usually  men  of  small  means,  who 
acted  as  their  agents.  .  .  .  The  proper  rule  of  construction  of 
statutes  such  as  these  is  that  in  the  absence  of  express  contrary 
intention  the  Legislature  intends  that  the  creature  of  the  statute 
shall  have  the  same  duties,  and  that  its  funds  shall  be  subject  to 
the  same  liabilities  as  the  general  law  would  impose  on  a  private 
individual  doing  the  same  thing.  It  would  require  very  clear  and 
express  words  of  enactment  to  induce  me  to  hold  that  the  Legisla- 
ture had  in  fact  legalised  the  existence  of  such  irresponsible  bodies 
with  such  wide  capacity  for  evil.  Not  only  is  there  nothing  in  the 
Acts  to  lead  me  to  such  a  conclusion,  but  sees.  15  and  16  of  the  Act 
of  1871  imposing  penalties  on  the  trade  union,  and  sees.  8  and  15 
of  the  Act  of  1876  point  to  a  contrary  intention;  nor  do  I  see  any 
reason  for  saying  that  the  society  cannot  be  sued  in  tort  in  their 
registered  name.  Sees.  8  and  9  of  the  Act  of  1871  expressly  provide 
for  actions  in  respect  of  property  being  brought  by  and  against  the 
trustees,  and  this  express  intention  impliedly  excludes  such  trustees 
from  being  sued  in  tort.  If,  therefore,  I  am  right  in  concluding  that 
the  society  are  liable  in  tort,  the  action  must  be  against  them  in 
their  registered  name.  The  acts  complained  of  are  the  acts  of  the 
association.  They  are  acts  done  by  their  agents  in  the  course  of 
the  management  and  direction  of  a  strike;  the  undertaking  such 
management  and  direction  is  one  of  the  main  objects  of  the  defend- 
ant society,  and  is  perfectly  lawful;  but  the  society,  in  undertaking 
such  management  and  direction,  undertook  also  the  responsibility 
for  the  manner  in  which  the  strike  is  carried  out.  The  fact  that  no 
action  could  be  brought  at  law  or  in  equity  to  compel  the  society 
to  interfere  or  refrain  from  interfering  in  the  strike  is  immaterial; 
it  is  not  a  question  of  the  rights  of  members  of  the  society,  but  of 
the  wrong  done  to  persons  outside  the  society.  For  such  wrongs, 
arising  as  they  do  from  the  wrongful  conduct  of  the  agents  of  the 
society  in  the  course  of  managing  a  strike  which  is  a  lawful  object 
of  the  society,  the  defendant  society  is,  in  my  opinion,  liable. 

I  have  come  to  this  conclusion  on  principle,  and  on  the  construc- 
tion of  the  Acts,  and  there  is  nothing  to  the  contrary  in  any  of  the 
cases  cited  by  the  defendants'  counsel.  ...  I  accordingly  dismiss 
the  society's  summons  with  costs. 


SECT.  I]  SUITS   BY   AND    AGAINST   LABOR   UNIONS  531 

I  have  now  to  consider  the  question  whether  an  injunction  should 
be  granted  against  the  society  in  addition  to  that  granted  last  week 
against  Messrs.  Bell  and  Holmes,  and  I  am  of  opinion  that  it  should. 
The  objects  of  the  society  comprise  promoting  the  settlement  of 
disputes  between  masters  and  men  by  arbitration,  or,  failing  that, 
by  other  lawful  means,  and  of  course  a  strike  is  perfectly  lawful: 
the  general  management  of  the  society  is  vested  in  an  executive 
committee,  with  power  to  represent  the  members  in  disputes  about 
hours  and  wages;  a  protection  fund  is  set  apart  out  of  the  funds  of 
the  society  for  the  more  effectual  protection  of  the  labour  and  rights 
of  members  and  for  the  better  carrying  on  of  any  movement  having 
that  end  in  view,  and  in  pursuance  of  its  objects  and  powers.  The 
society  by  their  letter  of  August  20,  signed  by  the  defendant  Bell, 
informed  the  plaintiffs  that  they  had  decided  to  support  the  men 
in  their  action,  and  had  instructed  Bell  to  take  charge  of  the  move- 
ment with  a  view  of  bringing  it  to  a  conclusion,  and  that  all  further 
negotiations  were  to  be  dealt  with  through  him.  The  defendant 
Bell  was  the  general  secretary  and  the  defendant  Holmes  was  the 
local  organising  secretary  of  the  society;  they,  as  agents  for  the 
society,  and  on  their  instructions  and  for  their  benefit,  put  them- 
selves in  charge  of  the  strike,  and  on  the  evidence  that  was  read  last 
week  illegally  watched  and  beset  men  to  prevent  them  from  work- 
ing for  the  company,  and  illegally  ordered  men  to  break  their  con- 
tracts. I  have  already  held  that  the  society  are  liable  for  the  acts 
of  their  agents  to  the  same  extent  that  they  would  be  if  they  were 
a  corporation,  and  it  is  abundantly  clear  that  a  corporation  under 
the  circumstances  of  this  case  would  be  liable.  See,  for  example, 
Ranger  v.  Great  Western  Ry.  Co.,  (1854)  5  H.  L.  C.  86,  where  Lord 
Cranworth  points  out  that,  although  a  corporation  cannot  in  strict- 
ness be  guilty  of  fraud,  there  can  be  no  doubt  that  if  its  agents  act 
fraudulently,  so  that  if  they  had  been  acting  for  private  employers 
the  persons  for  whom  they  were  acting  would  have  been  affected 
by  their  fraud,  the  same  principles  must  prevail  where  the  principal 
under  whom  the  agent  acts  is  a  corporation.  It  is  not  a  question  of 
acting  ultra  vires,  as  in  Chapleo  v.  Brunswick  Permanent  Building 
Society,  (1881)  6  Q.  B.  D.  696,  but  of  improper  acts  in  the  carrying 
out  of  the  lawful  purposes  of  the  society.  In  such  cases  the  principal, 
whether  an  individual  or  a  corporation,  or  a  body  like  turnpike 
trustees,  is  answerable  for  every  such  wrong  of  the  servant  or  agent 
as  is  committed  in  the  course  of  the  service  and  for  the  master's 
benefit,  though  no  express  command  or  privity  of  the  master  be 
proved.  Granted  that  the  principal  has  not  authorised  the  particular 
act,  but  he  has  put  the  agent  in  his  place  to  do  that  class  of  acts,  and 
he  is  answerable  for  the  manner  in  which  the  agent  has  conducted 
himself  in  doing  the  business  with  which  the  principal  has  entrusted 
him:    see  Barwick  v.  English  Joint  Stock  Bank  in  the  Exchequer 


532  CORPORATE    FEATURES   OF   LABOR   UNIONS  [CHAP.  XI 

Chamber,  (1867)  L.  R.  2  Ex.  259.  Therefore,  if  it  is  any  longer 
necessary  to  grant  an  injunction,  I  grant  an  injunction  against  the 
defendant  society  in  the  same  form  as  that  granted  last  week  against 
the  other  defendants. 

These  two  orders  of  Farwell,  J.,  were  set  aside  by  the  Court  of 
Appeal  (A.  L.  Smith,  M.R.,  Colhns  and  Stirling,  L.JJ.),  who  held 
that  a  trade  union  society  cannot  be  sued  in  its  registered  name, 
[1901]  1  K.  B.  170.     The  railway  company  appealed.  .  .  . 

The  House  took  time  for  consideration. 

July  22.  Earl  of  Halsbury.  L.  C.^  My  Lords,  in  this  case 
I  am  content  to  adopt  the  judgment  of  Farwell,  J.,  with  which  I 
entirely  concur;  and  I  cannot  find  any  satisfactory  answer  to  that 
judgment  in  the  judgment  of  the  Court  of  Appeal  which  overruled 
it.  If  the  Legislature  has  created  a  thing  which  can  own  property, 
which  can  employ  servants,  and  which  can  inflict  injury,  it  must  be 
taken,  I  think,  to  have  impliedly  given  the  power  to  make  it  suable 
in  a  Court  of  Law  for  injuries  purposely  done  by  its  authority  and 
procurement. 

I  move  your  Lordships  that  the  judgment  of  the  Court  of  Appeal 
be  reversed  and  that  of  Farwell,  J.,  restored. 

Lord  Brampton.  My  Lords,  I  shall  trouble  your  Lordships  with 
but  a  few  words,  for  I  entirely  concur  in  the  judgment  and  words 
of  the  Lord  Chancellor  in  adopting  the  judgment  of  Farwell,  J.  .  .  . 

I  think  that  a  legal  entity  was  created  under  the  Trade  Union 
Act,  1871,  by  the  registration  of  the  society  in  its  present  name  in 
the  manner  prescribed,  and  that  the  legal  entity  so  created,  though 
not  perhaps  in  the  strict  sense  a  corporation,  is  nevertheless  a  newly 
created  corporate  body  created  by  statute,  distinct  from  the  unin- 
corporated trade  union,  consisting  of  many  thousands  of  separate 
individuals,  which  no  longer  exists  under  any  other  name.  The  very 
omission  from  the  statute  of  any  provision  authorising  and  directing 
that  it  shall  sue  and  be  sued  in  any  other  name  than  that  given  to 
it  by  its  registration  appears  to  me  to  lead  to  no  other  reasonable 
conclusion  than  that  in  so  creating  it,  it  was  intended  by  the  Legisla- 
ture that  by  that  name  and  by  no  other  it  should  be  known,  and  that 
for  all  purposes  that  name  sliould  be  used  and  applied  to  it  in  all 
legal  proceeding  unless  there  was  any  other  provision  which  militated 
against  such  a  construction.  ... 

Lord  Lindley.  ...  I  entirely  repudiate  tlu>  notion  that  the 
effect  of  the  Trade  Union  Act,  1871,  is  to  l(>galise  trade  unions  and 
confer  on  them  the  right  to  acquire  and  hold  property,  and  at  the 
same  time  to  protect  the  union  from  legal  proceedings  if  their  man- 
agers or  agents  acting  for  the  whole  body  violate  the  rights  of  other 
people.     For  such  violation  the  property  of  trade  unions  can  un- 

'  Separate  concurring  opinions  were  rendered  by  Lord  Macnaghten  and  Lord 
Shand.  —  Ed. 


SECT.  I]  SUITS   BY   AND    AGAINST   LABOR   UNIONS  533 

questionably  in  my  opinion  be  reached  by  legal  proceedings  properly 
framed.  .  .  . 

Your  Lordships  have  not  now  to  consider  how  a  judgment  or 
order  against  a  trade  union  in  its  registered  name  can  be  enforced. 
I  see  no  difficulty  about  this;  but,  to  avoid  misconception,  I  will 
add  that  if  a  judgment  or  order  in  that  form  is  for  the  payment  of 
money  it  can,  in  my  opinion,  only  be  enforced  against  the  property 
of  the  trade  union,  and  that  to  reach  such  property  it  may  be  found 
necessary  to  sue  the  trustees. 

I  am  of  opinion  that  the  orders  of  Farwell,  J.,  were  right  and  should 
be  restored. 

Orders  of  the  Court  of  Appeal  reversed  and  judgments  of  Farwell,  J., 
restored  with  costs  here  and  below;  cause  remitted  to  the  King's 
Bench  Division} 


THE  UNITED  MINE  WORKERS  v.  THE  CORONADO 

COAL  CO. 

Supreme  Court  of  the  United  States.     1922 
—  U.  S.  —2 

This  is  a  writ  of  error  brought  under  Section  241  of  the  Judicial 
Code,  to  review  a  judgment  of  the  Circuit  Court  of  Appeals  of  the 
Eighth  Circuit.  That  court  on  a  writ  of  error  had  affirmed  the 
judgment  of  the  District  Court  for  the  Western  District  of  Arkansas, 
in  favor  of  the  plaintiffs,  with  some  modification,  and  that  judg- 
ment thus  affirmed  is  here  for  review. 

The  plaintiffs  in  the  District  Court  were  the  receivers  of  the  Bache- 
Denman  Coal  Co.,  and  eight  other  corporations  in  each  of  which 
the  first-named  company  owned  a  controlling  amount  of  stock. 
They  were  closely  interrelated  in  corporate  organization  and  in  the 

1  As  to  the  widespread  dissatisfaction  which  this  decision  created  in  the  trade 
union  world,  see  Webb,  History  of  Trade  Unionism  (1920  ed.),  pp.  600-604.  The 
resulting  demand  for  a  legislative  reversal  of  the  Taff  Vale  doctrine  led  to  the 
passage  of  the  Trade  Disputes  Act  of  1906  (see  supra,  p.  24). 

A  brief  comment  upon  the  American  law  will  be  found  in  33  H.  L.  R.  298-300. 
On  p.  300  it  is  said:  "As  a  practical  matter,  a  voluntary  association  does  act  as 
a  unit,  and  it  would  appear  that  the  liability  ought  to  be  primarily  that  of  the 
unit.  To  the  man  in  the  street  who  deals  with  a  labor  union  or  a  club,  there  is 
no  difference  apparent  between  the  conduct  of  that  organization,  unincorporated, 
and  the  conduct  of  a  similar  incorporated  association.  Nor  is  any  difference  ap- 
parent to  a  member.  Affairs  are  managed  in  quite  the  same  fashion:  business  is 
transacted  in  the  association  name:  the  entity  in  the  world  of  things  is  quite  as 
definite." 

For  a  Canadian  view  of  the  matter,  see  Metallic  Roofing  Co.  v.  Amalgamated 
Assn.,  5  Ont.  L.  Rep.  424. 

Compare  Dock,  Wharf,  Riverside  &  Genl.  Laborers'  Union  v.  White,  65  Sol. 
Jour.  723. 

2  Decided  June  5,  1922  (October  Term,  1921.     No.  31). 


534  CORPORATE    FEATURES   OF   LABOR   UNIONS  [CHAP.  XI 

physical  location  of  their  coal  mines.  These  had  been  operated  for 
some  years  as  a  unit  under  one  set  of  officers  in  the  Prairie  Creek 
Valley  in  Sebastian  County,  Arkansas.  In  July,  1914,  the  District 
Court  for  the  Western  District  of  Arkansas,  appointed  a  receiver  for 
all  of  the  nine  companies  by  a  single  decree.  The  receiver  then 
appointed  was  succeeded  by  Franklin  Bache,  who  as  such  is  defendant 
in  error  here. 

The  defendants  in  the  court  below  were  the  United  Mine  Work- 
ers of  America,  and  its  officers.  District  21  of  the  United  Mine  Work- 
ers of  America,  and  its  officers,  27  local  unions  in  District  No.  21, 
and  their  officers,  and  65  individuals,  mostly  members  of  one  union 
or  another,  but  including  some  persons  not  members,  all  of  whom 
were  charged  in  the  complaint  with  having  entered  into  a  conspiracy 
to  restrain  and  monopolize  interstate  commerce,  in  violation  of  the 
first  and  second  sections  of  the  Anti-Trust  Act,  and  with  havingT^n  the 
course  of  that  conspirac}^  and  for  the  purpose  of  consummating  it, 
destroyed  the  plaintiff's  properties.  Treble  damages  for  this  and 
an  attorney's  fee  were  asked  under  the  seventh  section  of  the  act. 

The  original  complaint  was  filed  in  September,  1914,  about  six 
weeks  after  the  destruction  of  the  property.  It  was  demurred  to, 
and  the  District  Court  sustained  the  demurrer.  This  was  carried 
to  the  Court  of  Appeals  on  error,  and  the  ruling  of  the  District  Court 
was  reversed.  Dowd  v.  United  Mine  Workers,  235  Fed.  1.  The 
case  then  came  to  trial  on  the  third  amended  complaint  and  answers 
of  the  defendants.  The  trial  resulted  in  a  verdict  of  $200,000  for 
the  plaintiffs,  which  was  trebled  by  the  Court,  and  to  which  was 
added  a  counsel  fee  of  $25,000,  and  interest  to  the  amount  of  $120,600, 
from  July  17,  1914,  the  date  of  the  destruction  of  the  property,  to 
November  22,  1917,  the  date  upon  which  judgment  was  entered. 
The  verdict  did  not  separate  the  amount  found  between  the  com- 
panies. On  a  writ  of  error  from  the  Court  of  Appeals,  the  case  was 
reversed  as  to  the  interest,  but  in  other  respects  the  judgment  was 
affirmed.  258  Fed.  829.  The  defendants,  the  International  Union 
and  District  No.  21,  have  given  a  supersedeas  bond  to  meet  the 
judgment  if  it  is  affirmed  as  against  both  or  either  of  them. 

The  third  amended  complaint  avers  that  of  the  nine  companies, 
of  which  the  plaintiff  was  receiver,  and  for  which  he  was  bringing  his 
suit,  five  were  operating  companies  engaged  in  mining  coal  and 
shipping  it  in  interstate  commerce,  employing  in  all  about  870  men, 
and  mining  an  annual  product  when  working  to  their  capacity  valued 
at  $465,000,  of  which  75  per  cent  was  sold  and  shipped  to  customers 
outside  of  the  State.  Of  the  five  operating  companies,  one  was 
under  contract  to  operate  the  properties  of  two  of  the  others,  and 
four  non-operating  companies  were  each  financially  interested  in  one 
or  more  of  the  operating  companies  either  by  lease,  by  contract,  or 
by  the  ownership  of  all  or  a  majority  of  their  stock.  The  defendant, 
the  United  Mine  Workers  of  America,  is  alleged  to  be  an  unincor- 


SECT.  I]  SUITS   BY   AND   AGAINST   LABOR   UNIONS  535 

porated  association  of  mine  workers,  governed  by  a  constitution, 
with  a  membership  exceeding  400,000,  subdivided  into  thirty  districts 
and  numerous  local  unions.  These  subordinate  districts  and  unions 
are  subject  to  the  constitution  and  by-laws  not  only  of  the  Inter- 
national Union,  but  also  to  constitutions  of  their  own. 

The  complaint  avers  that  the  United  Mine  Workers  divide  all 
coal  mines  into  two  classes,  union  or  organized  mines  operating  under 
a  contract  with  the  union  to  employ  only  union  miners,  and  open 
shop  or  non-union  mines,  which  refuse  to  make  such  a  contract; 
that  owing  to  the  unreasonable  restrictions  and  regulations  imposed 
by  the  union  on  organized  mines,  the  cost  of  production  of  union 
coal  is  unnecessarily  enhanced  so  as  to  prevent  its  successful  com- 
petition in  the  markets  of  the  country  with  non-union  coal ;  that  the 
object  of  the  conspiracy  of  the  United  Mine  Workers  and  the  union 
operators  acting  with  them  is  the  protection  of  the  union-mined 
coal  by  the  prevention  and  restraint  of  all  interstate  trade  and  com- 
petition in  the  products  of  non-union  mines.  The  complaint  enu- 
merates twenty-three  States  in  which  coal  mining  is  conducted,  and 
alleges  that  the  coal  mined  in  each  comes  into  competition  in  inter- 
state commerce,  directly  or  indirectly,  with  that  mined  in  Illinois, 
Kentucky,  Alabama,  New  Mexico,  Colorado,  Kansas,  Oklahoma 
and  Arkansas,  in  the  markets  of  Louisiana,  Texas,  Oklahoma,  Ne- 
braska, Kansas,  Missouri,  Iowa  and  Minnesota,  where,  but  for  the 
defendants'  unlawful  interference,  plaintiffs  would  have  been  en- 
gaged in  trade  in  1914;  that  the  bituminous  mines  of  the  greater 
part  of  the  above  territory  are  union  mines,  the  principal  exceptions 
being  Alabama,  West  Virginia,  parts  of  Pennsylvania  and  Colorado, 
which  the  defendant  has  thus  far  been  unable  to  organize. 

The  complaint  further  avers  that  early  in  1914,  the  plaintiff  com- 
panies decided  that  the  operating  companies  should  go  on  a  non- 
union or  open  shop  basis.  Two  of  them,  the  Prairie  Creek  Coal 
Mining  Co.  and  the  Mammoth  Vein  Coal  Co.,  closed  down  and  dis- 
continued as  union  mines,  preparatory  to  reopening  as  open  shop 
mines  in  April.  They  were  to  be  operated  under  a  new  contract  by 
the  Mammoth  Vein  Coal  Mining  Co.  Another  of  the  companies, 
the  Hartford  Coal  Co.,  which  had  not  been  in  operation,  planned  to 
start  as  an  open  shop  mine  as  soon  as  convenient  in  the  summer  of 
1914.  The  fifth,  the  Coronado  Coal  Co.,  continued  operating  with 
the  union  until  April  18,  1914,  when  its  employees  struck  because  of 
its  unity  of  interest  with  the  other  mines  of  the  plaintiffs.  The  plain- 
tiff says  that  in  April,  1914,  the  defendants  and  those  acting  in  con- 
junction with  them,  in  furtherance  of  the  general  conspiracy,  already 
described,  to  drive  non-union  coal  out  of  interstate  commerce,  and 
thus  to  protect  union  operators  from  non-union  competition,  drove 
and  frightened  away  the  plaintiffs'  employees  including  those 
directly  engaged  in  shipping  coal  to  other  States,  prevented  the 
plaintiffs  from  employing  other  men,  destroyed  the  structvires  and 


536  CORPORATE    FEATURES  OF  LABOR  UNIONS  [CHAP.  XI 

facilities  for  mining,  loading  and  shipping  coal,  and  the  cars  of  inter- 
state carriers  waiting  to  be  loaded,  as  well  as  those  alreadj''  loaded 
with  coal  in  and  for  interstate  shipment,  and  prevented  plaintiffs 
from  engaging  in  or  continuing  to  engage  in  interstate  commerce. 
The  complaint  alleges  that  the  destruction  to  the  property  in  busi- 
ness amounted  to  the  sum  of  S740,000,  and  asks  judgment  for 
three  times  that  amount  or  $2,220,000.  Certain  of  the  funds  of  the 
United  Mine  Workers  in  Arkansas  were  attached.  The  defendants, 
the  United  Mine  Workers  of  America,  District  No.  21,  and  each 
local  union  and  each  individual  defendant  filed  a  separate  answer. 
The  answers  deny  all  the  averments  of  the  complaint.  The  trial 
began  on  October  24,  1917,  and  a  verdict  and  judgment  were  en- 
tered on  November  22,  following.  The  evidence  is  very  voluminous, 
covering  more  than  3000  printed  pages. 

Mr.  Chief  Justice  Taft,  after  stating  the  case,  delivered  the 
opinion  of  the  court. 

There  are  five  principal  questions  pressed  by  the  plaintiffs  in  error 
here,  the  defendants  below.  jThe  first  is  that  there  was  a  misjoinder 
of  parties  plaintiff.^The  second  is  that  the  United  Mine  Workers  of 
America,  District  No.  21,  United  Mine  Workers  of  America  and  the 
local  unions  made  defendants  are  unincorporated  associations  and 
not  subject  to  suit  and  therefore  shoiUd  have  been  dismissed  from 
the  case  on  motions  seasonably  made,r'  'The  third  is  that  there  is  no 
evidence  to  show  any  agency  by  the  United  Mine  Workers  of  America 
in  the  conspiracy  charged  or  in  the  actual  destruction  of  the  property, 
and  no  liability  therefor.'  The  fourth  is  that  there  is  no  evidence  to 
show  that  the  conspiracy  alleged  against  District  No.  21  and  the 
other  defendants,  was  a  conspiracy  to  restrain  or  monopolize  inter- 
state commerce.'  The  fifth  is  that  the  court  erred  in  a  supplemental 
charge  to  the  jury,  which  so  stated  the  court's  view  of  the  evidence 
as  to  amount  to  a  mandatory  direction  coercing  the  jury  into  finding 
the  verdict  which  was  recorded.  .  .  . 

Second.^  Were  the  unincorporated  associations,  the  International 
Union,  District  No.  21,  and  the  local  unions  suable  in  their  names? 
The  United  Mine  Workers  of  America  is  a  national  organization. 
Indeed,  because  it  embraces  Canada  it  is  called  the  International 
Union.  Under  its  constitution,  it  is  intended  to  be  the  union  of  all 
workmen  emploj'cd  in  and  around  coal  mines,  coal  washers  and  coke 
ovens  on  the  American  continent.  Its  declared  purpose  is  to  increase 
wages  and  improve  conditions  of  employment  of  its  members  by 
legislation,  conciliation,  joint  agreements  and  strikes.  It  demands 
not  more  than  eight  hours  a  day  of  labor.  The  union  is  composed 
of  workmen  eligible  to  membership  and  is  divided  into  districts, 
subdistricts  and  local  unions.  The  ultimate  authority  is  a  general 
convention  to  which  delegates  selected  by  the  members  in  their 

*  That  part  of  the  opinion  dealing  with  misjoinder  of  parties  plaintiff  and  hold- 
ing that  there  was  no  such  ii)isjoincier  is  omitted.  —  Ed. 


SECT.  I]  SUITS    BY    AND    AGAINST    LABOR    UNIONS  537 

local  organizations  arc  elected.  The  body  governing  the  union  in  the 
interval  between  conventions  is  the  International  Board  consisting 
of  the  principal  officers,  the  president,  vice-president  and  secretary- 
treasurer,  together  with  a  member  from  each  district.  The  president 
has  much  power.  He  can  remove  or  suspend  International  officers, 
appoints  the  national  organizers  and  subordinates,  and  is  to  interpret 
authoritatively  the  constitution,  subject  to  reversal  by  the  Inter- 
national Board.  When  the  Board  is  not  in  session,  the  individual 
members  are  to  do  what  he  directs  them  to  do.  He  may  dispense 
with  initation  fees  for  admission  of  new  locals  and  members.  The 
machinery  of  the  organization  is  directed  largely  toward  propaganda, 
conciliation  of  labor  disputes,  the  making  of  scale  agreements  with 
operators,  the  discipline  of  officers,  members,  districts  and  locals, 
and  toward  strikes  and  the  maintenance  of  funds  for  that  purpose. 
It  is  admirably  framed  for  unit  action  under  the  direction  of  the 
National  officers.  It  has  a  weekly  journal,  whose  editor  is  appointed 
by  the  president,  which  publishes  all  official  orders  and  circulars, 
and  all  the  union  news.  Each  local  union  is  required  to  be  a  sub- 
scriber, and  its  official  notices  are  to  be  brought  by  the  secretary  to 
the  attention  of  the  members.  The  initiation  fees  and  dues  collected 
from  each  member  are  divided  between  the  national  treasury,  the 
district  treasury  and  that  of  the  local.  Should  a  local  dissolve,  the 
money  is  to  be  transmitted  to  the  national  treasury. 

The  rules  as  to  strikes  are  important  here.  Sec.  27  of  the  constitu- 
tion is  as  follows: 

"The  Board  shall  have  power  between  conventions,  by  a  two- 
thirds  vote,  to  recommend  the  calling  of  a  general  strike,  but  under 
no  circumstances  shall  it  call  such  strike  until  approved  by  a  ref- 
erendum vote  of  the  members." 

Under  article  16,  no  district  is  permitted  to  engage  in  a  strike  in- 
volving all  or  a  major  portion  of  its  members  without  sanction  of  the 
International  Convention  or  Board. 

Sec.  2  of  that  article  provides  that  districts  may  order  local  strikes 
within  their  respective  districts  "on  their  own  responsibihty,"  but 
where  local  strikes  are  to  be  financed  by  the  International  Union, 
they  must  be  sanctioned  by  the  International  Board. 

Sec.  3  provides  that  in  unorganized  fields  the  Convention  or  Board 
must  sanction  strikes  and  no  financial  aid  is  to  be  given  until  after 
the  strike  has  lasted  four  weeks,  unless  otherwise  decided  by  the 
Board.  The  Board  is  to  prescribe  conditions  in  which  strikes  are 
to  be  financed  by  the  International  Union  and  the  amount  of  strike 
relief  to  be  furnished  the  striking  members.  In  such  cases,  the 
president  appoints  a  financial  agent  to  assume  responsibility  for 
money  to  be  expended  from  the  International  funds,  and  he  only 
can  make  binding  contracts.  There  is  a  uniform  system  of  account- 
ing as  to  the  disbursements  for  strikes. 

The  membership  of  the  union  has  reached  450,000.     The  dues  re- 


538  CORPORATE    FEATURES   OF   LABOR   UNIONS         [CHAP.  XI 

ceived  from  them  for  the  national  and  district  organizations  make 
a  very  large  annual  total,  and  the  obligations  assumed  in  travelling 
expenses,  holding  of  conventions,  and  general  overhead  cost,  but 
most  of  all  in  strikes,  are  so  heavy  that  an  extensive  financial  business 
is  carried  on,  money  is  borrowed,  notes  are  given  to  banks,  and  in 
every  way  the  union  acts  as  a  business  entity,  distinct  from  its 
members.  No  organized  corporation  has  greater  unity  of  action,  and 
in  none  is  more  power  centered  in  the  governing  executive  bodies. 

Undoubtedly  at  common  law,  an  unincorporated  association  of  per- 
sons was  not  recognized  as  having  any  other  character  than  a  partner- 
ship in  whatever  was  done,  and  it  could  only  sue  or  be  sued  in  the 
names  of  its  members,  and  their  liability  had  to  be  enforced  against 
each  member.  Pickett  v.  Walsh,  192  Mass.  572;  Karges  Furniture 
Co.  ?'.  Amalgamated  Woodworkers  Local  Union,  165  Ind.  421;  Bas- 
kins  V.  United  Mine  Workers  (Ark.),  decided  Nov.  7,  1921  (234  S.  W. 
464).  But  the  growth  and  necessities  of  these  great  labor  organiza- 
tions have  brought  affirmative  legal  recognition  of  their  existence 
and  usefulness  and  provisions  for  their  protection,  which  their  mem- 
bers have  found  necessary.  Their  right  to  maintain  strikes,  when 
they  do  not  violate  law  or  the  rights  of  others,  has  been  declared. 
The  embezzlement  of  funds  by  their  officers  has  been  especially  de- 
nounced as  a  crime.  The  so-called  union  label,  which  is  a  quasi  trade- 
mark to  indicate  the  origin  of  manufactured  product  in  union  labor, 
has  been  protected  against  pirating  and  deceptive  use  by  the  statutes 
of  most  of  the  States,  and  in  many  States  authority  to  sue  to  enjoin 
its  use  has  been  conferred  on  unions.  They  have  been  given  distinct 
and  separate  representation  and  the  right  to  appear  to  represent 
union  interests  in  statutory  arbitrations,  and  before  official  labor 
boards.  .  .  .  More  than  this,  equitable  procedure  adapting  itself  to 
modern  needs  has  grown  to  recognize  the  need  of  representation  by 
one  person  of  many,  too  numerous  to  sue  or  to  be  sued  (Story,  Equity 
Pleadings,  8th  ed.,  sees.  94,  97;  St.  Germain  v.  Bakery  Union,  97 
Wash.  282;  Branson  v.  Industrial  Workers  of  the  World,  30  Nev.  270; 
Barnes  v.  Chicago  Typographical  Union,  232  111.402) ;  and  this  has  had 
its  influence  upon  the  law  side  of  litigation,  so  that  out  of  the  very  ne- 
cessities of  the  existing  conditions  and  the  utter  impossibility  of  doing 
justice  otherwise,  the  suable  character  of  such  an  organization  as  this 
has  come  to  be  recognized  in  some  jurisdictions, and  many  suits  for  and 
against  labor  unions  are  reported  in  which  no  (}uostion  has  been  raised 
as  to  the  right  to  treat  them  in  their  closely  united  action  and  func- 
tions as  artificial  persons  capable  of  suing  and  being  sued.  It  would 
be  unfortunate  if  an  organization  with  as  groat  power  as  this  Inter- 
national I'nion  has  in  the  raising  of  large  funds  and  in  directing  the 
conduct  of  four  hundred  thousand  nic^mbers  in  carrying  on,  in  a  wide 
territory,  industrial  controversies  and  strikes,  out  of  which  so  much 
unlawful  injury  to  private  rights  is  possible,  could  assemble  its  assets 
to  be  used  therein  free  from  lia])ility  for  injuries  by  torts  conunitted 


SECT.  I]  SUITS   BY   AND   AGAINST   LABOR   UNIONS  539 

in  course  of  such  strikes.  To  remand  persons  injured  to  a  suit  against 
each  of  the  400,000  members  to  recover  damages  and  to  levy  on  his 
share  of  the  strike  fund,  would  be  to  leave  them  remediless. 

In  the  case  of  Taff  Vale  Co.  v.  Amalgamated  Society  of  Railway 
Servants,  [1901]  A.  C.  426,  an  English  statute  provided  for  the  regis- 
tration of  trades  unions,  authorized  them  to  hold  property  through 
trustees,  to  have  agents,  and  provided  for  a  winding  up  and  a  ren- 
dering of  accounts.  A  union  was  sued  for  damages  growing  out 
of  a  strike.  Mr.  Justice  Farwell,  meeting  the  objection  that  the 
union  was  not  a  corporation  and  could  not  be  sued  as  an  artificial 
person,  said: 

"If  the  contention  of  the  defendant  Society  were  well  founded, 
the  legislature  has  authorized  the  creation  of  numerous  bodies  of 
men  capable  of  owning  great  wealth  and  of  action  by  agents  with 
absolutely  no  responsibility  for  the  wrongs  that  they  may  do  tc> 
other  persons  by  the  use  of  that  wealth  and  the  employment  of 
those  agents." 

He  therefore  gave  judgment  against  the  union.  This  was  affirmed 
by  the  House  of  Lords.  The  legislation  in  question  in  that  case 
did  not  create  trade  unions  but  simply  recognized  their  existence 
and  regulated  them  in  certain  ways,  but  neither  conferred  on  them 
general  power  to  sue,  nor  imposed  liability  to  be  sued.  See  also, 
Hildenbrand  v.  Building  Trade  Council,  14  Ohio  D.  C.  N.  P.  628. 
Holland  Jurisprudence,  12th  ed.  341 ;  Pollock's  First  Book  on 
Jurisprudence,  2d  ed.  125. 

Though  such  a  conclusion  as  to  the  suability  of  trades  unions 
is  of  primary  importance  in  the  working  out  of  justice  and  in  pro- 
tecting individuals  and  society  from  possibility  of  oppression  and 
injury  in  their  lawful  rights  from  the  existence  of  such  powerful 
entities  as  trade  unions,  it  is  after  all  in  essence  and  principle  merely 
a  procedural  matter.  As  a  matter  of  substantive  law,  all  the  mem- 
bers of  the  union  engaged  in  a  combination  doing  unlawful  injury 
are  liable  to  suit  and  recovery,  and  the  only  question  is  whether 
when  they  have  voluntarily,  and  for  the  purpose  of  acquiring  con- 
centrated strength  and  the  faculty  of  quick  unit  action  and  elasticity, 
created  a  self-acting  body  with  great  funds  to  accomplish  their 
purpose,  they  maj^  not  be  sued  as  this  body,  and  the  funds  they  have 
accumulated  may  not  be  made  to  satisfy  claims  for  injuries  unlaw- 
fully caused  in  carrying  out  their  united  purpose.  Trade  unions 
have  been  recognized  as  lawful  by  the  Clayton  Act;  they  have  been 
tendered  formal  incorporation  as  National  Unions  by  the  act  of 
Congress  approved  June  29,  1886  (24  Stat.  86).  In  the  act  of  Con- 
gress, approved  August  23,  1912  (37  Stat.  415),  a  commission  on 
industrial  relations  was  created  providing  that  three  of  the  Com- 
missioners should  represent  organized  labor.  The  Transportation 
Act  of  1920,  Sees.  302-307  (41  Stat.  469),  recognizes  labor  unions 
in  creation  of  railroad  boards  of  adjustment,  and  provides  for  ac- 


540  CORPORATE    FEATURES   OF   LABOR   UNIONS  [CHAP.  XI 

tion  by  the  Railroad  Labor  Board  upon  their  appHcation.  The 
act  of  Congress  approved  August  5,  1909,  Chap.  6,  Sec.  38,  36  Stat. 
112  and  the  act  approved  October  3,  1913,  Chap.  16,  subd.  G.  a. 
(38  Stat.  172),  expressly  exempt  labor  unions  from  excise  taxes. 
Periodical  publications  issued  by  or  under  the  auspices  of  trades 
unions  are  admitted  into  tl.e  mails  as  second  class  mail  matter.  Acts 
of  1911-12,  Chap.  389  (37  Stat.  550).  The  legality  of  labor  unions 
of  postal  employees  is  expressly  recognized  b}^  act  of  Congress,  ap- 
proved August  24,  1912,  Chap.  389,  Sec.  6  (37  Stat.  539,  555).  By 
act  of  Congress,  passed  August  1,  1914,  no  money  was  to  be  used 
from  funds  therein  appropriated  to  prosecute  unions  under  the  Anti- 
Trust  Act  (38  Stat.  609,  652). 

In  this  state  of  federal  legislation,  we  think  that  such  organiza- 
tions are  suable  in  the  federal  courts  for  their  acts,  and  that  funds 
accumulated  to  be  expended  in  conducting  strikes  are  subject  to 
execution  in  suits  for  torts  committed  by  such  unions  in  strikes. 
The  fact  that  the  Supreme  Court  of  Arkansas  has  since  taken  a 
different  view  in  Baskins  v.  The  United  Mine  Workers  of  America. 
supra,  cannot  under  the  Conformity  Act  operate  as  a  limitation  on 
the  federal  procedure  in  this  regard. 

Our  conclusion  as  to  the  suability  of  the  defendants  is  confirmed 
in  the  case  at  bar  by  the  words  of  sections  seven  and  eight  of  the 
Anti-Trust  Law.  The  persons  who  may  be  sued  under  Sec.  7  in- 
clude "corporations  and  associations  existing  under  or  authorized 
by  the  laws  of  either  the  United  States,  or  the  laws  of  any  of  the 
territories,  the  laws  of  any  State,  or  the  laws  of  any  foreign  coun- 
try." This  language  is  very  broad,  and  the  words  given  their  natural 
signification  certainly  include  labor  unions  like  these.  They  are, 
as  has  been  abundantly  shown,  associations  existing  under  the 
laws  of  the  United  States,  of  the  territories  thereof,  and  of  the  States 
of  the  Union.  Congress  was  passing  drastic  legislation  to  remedy  a 
threatening  danger  to  the  public  welfare,  and  did  not  intend  that 
any  persons  or  combinations  of  persons  should  escape  its  applica- 
tion. Their  thought  was  especially  directed  against  business  as- 
sociations and  combinations  that  were  unincorporated  to  do  the 
things  forbidden  by  the  act,  but  they  used  language  broad  enough 
to  include  all  associations  which  might  violate  its  provisions  recog- 
nized by  the  statutes  of  the  United  States  or  the  States  or  the  Terri- 
tories, or  foreign  countries  as  lawfully  existing;  and  this,  of  course, 
includes  labor  unions,  as  the  legislation  referred  to  shows.  Thus  it 
was  that  in  the  cases  of  United  States  v.  Trans-Missouri  Freight  Asso- 
ciation, 166  U.  S.  290,  United  vStates  v.  Joint  Traffic  Association,  171 
U.  S.  505,  Montague  &  Co.  v.  Lowry,  193  U.  S.  38,  and  Eastern 
States  Lumber  Association  v.  United  States,  234  U.  S.  600,  unin- 
corporated associations  were  made  parties  to  suits  in  the  federal 
courts  under  the  Anti-Trust  Act  without  question  by  anyone  as  to 
the  correctness  of  the  procedure. 


SECT.   I]  SUITS   BY    AND    AGAINST   LABOR   UNIONS  541 

For  these  reasons,  we  conclude  that  the  International  Union,  the 
District  No.  21  and  the  27  Local  Unions  were  properly  made  parties 
defendant  here  and  properly  served  by  process  on  their  principal 
officers. 

Third.  The  next  question  is  whether  the  International  Union 
was  shown  by  any  substantial  evidence  to  have  initiated,  participated 
in  or  ratified  the  interference  with  plaintiffs'  business  which  began 
April  6,  1914,  and  continued  at  intervals  until  July  17,  when  the 
matter  culminated  in  a  battle  and  the  destruction  of  the  Bache- 
Denman  properties.  The  strike  was  a  local  strike  declared  by  the 
president  and  officers  of  the  District  Organization  No.  21,  embrac- 
ing Arkansas,  Oklahoma  and  Texas.  By  sec.  16  of  the  International 
constitution,  as  we  have  seen,  it  could  not  thus  engage  in  a  strike  if 
it  involved  all  or  a  major  part  of  its  district  members  without  sanc- 
tion of  the  International  Board.  There  is  nothing  to  show  that  the 
International  Board  ever  authorized  it,  took  any  part  in  preparation 
for  it  or  in  its  maintenance.  Nor  did  they  or  their  organization 
ratify  it  by  paying  any  of  the  expenses.  It  came  exactly  within 
the  definition  of  a  local  strike  in  the  constitutions  of  both  the  Na- 
tional and  the  District  organizations.  The  District  made  the  prep- 
arations and  paid  the  bills.  It  does  appear  that  the  president  of  the 
National  body  was  in  Kansas  City  and  heard  of  the  trouble  which 
had  taken  place  on  April  6  at  Prairie  Creek  and  that  at  a  meeting 
of  the  International  Board  he  reported  it  as  something  he  had  learned 
on  his  trip  for  their  official  information.  He  said  that  a  man  named 
Bache  had  demanded  in  a  suit  an  accounting  of  the  funds  of  the 
Southwestern  Coal  Operators'  Association,  that  when  he  secured 
the  information,  he  "went  down  to  Arkansas  and  started  to  run  his 
mine  non-union.  The  boys  simply  marched  in  on  him  in  a  day  down 
there  and  kicked  his  Colorado  guards  out  of  there  and  broke  their 
jaws  and  put  the  flag  of  the  United  Mine  Workers  on  top  of  the  tipple 
and  pulled  the  fires  out  of  the  boilers,  and  that  was  all  there  was  to 
it,  and  the  mines  have  been  idle  ever  since.  I  do  not  say  our  boys 
did  this,  but  I  mean  the  people  from  all  through  that  country  marched 
in  and  stopped  the  work,  and  when  the  guards  offered  resistance, 
several  of  them  were  roughly  handled  but  no  lives  were  lost  as  I 
understand  it."  Later  in  May  he  made  a  long  speech  at  a  special 
convention  of  District  No.  21  held  at  Fort  Smith  for  a  purpose  not 
connected  with  this  matter  in  which  he  referred  especially  to  the 
Colorado  and  West  Virginia  strikes  in  which  the  International 
Union  was  engaged  with  all  its  might,  but  he  made  no  specific  allu- 
sion to  the  Prairie  Creek  difficulty.  It  does  appear  that  in  1916  after 
Stewart,  the  president  of  District  21,  had  been  convicted  of  con- 
spiracy to  defeat  the  injunction  issued  to  protect  the  Prairie  Creek 
mines  in  this  conflict,  and  had  gone  to  the  penitentiary  and  was 
pardoned.  White,  the  National  president,  wrote  a  letter  thanking  the 
President  for  this,  and  that  subsequently  he  appointed  Stewart  to  a 


542  CORPORATE    FEATURES   OF   LABOR   UNIONS  [CHAP.  XI 

position  on  a  District  committee.  It  would  be  going  very  far  to 
consider  such  acts  of  the  president  alone  a  ratification  by  the  Inter- 
national Board  creating  liability  for  a  past  tort.  The  president 
had  not  authorit}^  to  order  or  ratify  a  local  strike.  Only  the  Board 
could  do  this.  White's  report  in  an  executive  meeting  of  the  Board 
of  the  riot  of  April  6  shows  sjanpathy  with  its  purpose  and  a  lack  of 
respect  for  law  but  does  not  imply  or  prove  on  his  part  any  prior 
initiation  or  indicate  a  desire  to  ratify  the  transaction  as  his  work. 
The  Board  took  no  action  on  his  report.    He  did  not  request  it. 

Communications  from  outsiders  and  editorials  published  in  the 
United  Mine  Workers  journal  giving  accounts  of  the  occurrences  at 
Prairie  Creek  and  representing  that  the  troubles  were  due  to  the 
aggression  of  the  armed  guards  of  the  mine  owners  and  that  the 
action  of  the  union  men  was  justified  because  in  defense  of  their 
homes  against  night  attacks  do  not  constitute  such  ratification  by 
the  Board  or  the  president  after  the  fact  as  to  make  the  Interna- 
tional Union  liable  for  what  had  been  done. 

The  argument  of  counsel  for  the  plaintiffs  is  that  because  the  Na- 
tional body  had  authority  to  discipline  District  organizations,  to 
make  local  strikes  its  own  and  to  pay  their  cost,  if  it  deemed  it  wise, 
the  duty  was  thrust  on  it  when  it  knew  a  local  strike  was  on,  to 
superintend  it  and  prevent  its  becoming  lawless  at  its  peril.  We 
do  not  conceive  that  such  responsibility  is  imposed  on  the  National 
body.  A  corporation  is  responsible  for  the  wrongs  committed  by 
its  agents  in  the  course  of  its  business,  and  this  principle  is  enforced 
against  the  contention  that  torts  are  ultra  vires  the  corporation.  But 
it  must  be  shown  that  it  is  in  the  business  of  the  corporation.  Surely 
no  stricter  rule  can  be  enforced  against  an  unincorporated  organi- 
zation like  this.  Here  it  is  not  a  question  of  contract  or  of  holding 
out  an  appearance  of  authority  on  which  some  third  person  acts. 
It  is  a  mere  question  of  actual  agency  which  the  constitutions  of 
the  two  bodies  settle  conclusively.  If  the  International  body  had 
interfered  or  if  it  had  assumed  liability  by  ratification,  different 
questions  would  have  arisen. 

Counsel  cite  sec.  2  of  article  12  of  the  constitution  of  District 
No.  21  to  show  that  questions  of  all  strikes  must  be  referred  by 
District  officers  to  the  National  president  for  his  decision,  and  sug- 
gest that  in  the  absence  of  a  showing  it  is  to  be  inferred  that  they 
did  so  here  and  the  strike  was  approved  by  him.  They  misconstrue 
the  section.  It  applies  only  to  a  proposed  strike  which  would  affect 
two  Districts  and  to  which  one  District  is  opposed.  It  does  not 
apply  to  local  strikes  like  this. 

But  it  is  said  that  the  District  was  doing  the  work  of  the  Inter- 
national and  carrying  out  its  policies  and  this  circumstance  makes 
the  former  an  agent.  We  caimot  agree  to  this  in  the  face  of  the 
specific  stipulation  between  them  that  in  such  a  case  unless  the 
International  expressly  assumed   responsibility,   the  District  must 


SECT.  I]  SUITS   BY   AND   AGAINST  LABOR  UNIONS  543 

meet  it  alone.  The  subsequent  events  showing  that  the  District 
did  meet  the  responsibihty  with  its  own  funds  confirm  our  rehance 
upon  the  constitutions  of  the  two  bodies. 

We  conclude  that  the  motions  of  the  International  Union,  the 
United  Mine  Workers  of  America,  and  of  its  president  and  its  other 
officers,  that  the  jury  be  directed  to  return  a  verdict  for  them,  should 
have  been  granted. 

Fourth.  The  next  question  is  twofold:  (a)  Whether  the  District 
No.  21  and  the  individual  defendants  participated  in  a  plot  unlaw- 
fully to  deprive  the  plaintiffs  of  their  employees  by  intimidation 
and  violence  and  in  the  course  of  it  destroyed  their  properties,  and, 
(b),  whether  they  did  these  things  in  pursuance  of  a  conspiracy 
to  restrain  and  monopolize  interstate  commerce. 

The  case  made  for  the  plaintiff  was  as  follows: 

(a)  In  March  of  1914,  when  the  Prairie  Creek  No.  4,  Mammoth 
Vein  Coal  Mine,  and  the  Coronado  mines  were  operating  with  union 
labor  and  under  a  District  No.  21  contract  and  scale  of  wages  and 
terms  which  did  not  expire  until  July  1  following,  Bache,  the  manager 
of  all  the  properties,  determined  to  run  his  mines  thereafter  on  a 
non-union  or  open  basis.  He  had  his  superintendent  prepare  a  letter 
setting  forth  his  reasons  for  the  change  and  forwarded  it  to  his  prin- 
cipals in  the  East  to  justify  the  change  of  policy  which  he  insisted 
would  result  in  a  substantial  reduction  in  the  cost  of  production. 
To  avoid  the  charge  of  a  breach  of  the  union  scale,  he  had  a  contract 
made  between  the  Mammoth  Vein  Coal  Mining  Co.,  \\hich  he  con- 
trolled, and  the  Prairie  Creek  Coal  Co.  and  the  Mammoth  Vein  Coal 
Co.,  by  which  the  Mammoth  Vein  Coal  Mining  Co.,  a  corporation 
with  $100  capital,  agreed  to  run  the  mines.  As  it  had  signed  no  scale, 
he  considered  it  free  from  obligation  to  the  union.  He  then  shut 
down  the  mines  and  prepared  to  open  them  on  a  non-union  basis 
on  April  6.  He  anticipated  trouble.  He  employed  three  guards 
from  the  Burns  Detective  Agency,  and  a  number  of  others  to  aid 
them.  He  bought  a  number  of  Winchester  rifles  and  ammunition. 
He  surrounded  his  principal  mining  plant  at  Prairie  Creek  No.  4  with 
a  cable  strung  on  posts.  He  had  notices  prepared  for  his  former 
employees,  who  occupied  the  Company's  houses,  to  vacate.  He  had 
notices  warning  trespassers  from  the  premises  posted  at  the  entrance 
to  the  tract  that  was  enclosed  within  the  cable.  He  sent  out  for 
non-union  men  and  had  gathered  some  thirty  or  more  at  the  mine 
by  the  day  fixed  for  the  opening. 

The  mines  of  the  plaintiffs  lie  in  the  County  of  Sebastian  on  the 
west  border  of  Arkansas,  next  to  Oklahoma,  in  a  hilly  country.  The 
whole  country  is  full  of  coal  mines.  The  annual  coal-producing 
capacity  of  Arkansas  is  about  2,000,000  tons.  The  product  is  a 
smokeless  coal  like  the  Pocohontas  of  West  Virginia.  All  the  Arkan- 
sas mines  but  one  small  one  were  union.  The  towns  in  the  neighbor- 
hood, Hartford,  Huntington,  Midland,  Frogtown,  and  others  were 


544  CORPORATE    FEATURES   OF   LABOR   UNIONS    [CHAP.  XI 

peopled  by  union  miners  and  the  business  done  in  them  was  depend- 
ent on  union  miners'  patronage.  Hartford,  a  town  of  twenty-five 
hundred,  was  about  three  miles  from  Prairie  Creek;  Midland,  less 
in  size,  lay  about  the  same  distance  away  in  another  direction;  and 
Huntington  was  a  mile  or  two  further  in  still  another  direction. 
Frogtown  was  a  small  village  about  a  mile  and  a  half  from  Prairie 
Creek.  Stewart,  the  president  of  the  District  No.  21,  and  the  other 
officers  promptly  declared  a  local  strike  against  the  Prairie  Creek 
and  Mammoth  Vein  mine  and  the  union  miners  who  had  not  been 
discharged  from  the  Coronado  mine  of  the  plaintiffs  left.  Through 
the  agency  of  the  officers  of  District  No.  21  and  the  local  unions,  a 
pubhc  meeting  was  called  at  the  schoolhouse,  about  a  quarter  of  a 
mile  from  the  Prairie  Creek  mine.  The  influence  of  the  union  men 
was  exerted  upon  the  shopkeepers  of  the  towns  above  named  to 
close  their  stores  and  attend  the  meeting.  It  was  given  a  picnic 
character  and  women  and  children  attended.  The  meeting,  after 
listening  to  speeches,  appointed  a  committee  to  visit  the  super- 
intendent in  charge  of  the  mine.  On  this  committee  was  one  Slan- 
kard,  a  constable  of  the  town  of  Hartford,  and  a  union  man,  to- 
gether with  two  other  union  miners.  They  asked  the  superintendent 
that  the  non-union  men  be  sent  away  and  the  mine  resume  opera- 
tions with  union  men.  The  committee  was  attended  by  a  very 
large  body  of  union  miners.  They  were  met  at  the  entrance  to  the 
enclosure  by  two  guards  with  guns  carried  behind  them.  The  com- 
mittee was  admitted  to  see  the  superintendent  and  the  crowd  dealt 
with  the  guards.  The  guards  had  been  directed  not  to  use  their 
guns  save  to  defend  their  own  lives  or  another's.  The  union  miners 
assaulted  the  guards,  took  the  guns  away,  and  so  injured  a  number 
of  the  employees,  that  four  or  five  had  to  be  sent  to  a  hospital.  The 
crowd  swarmed  over  the  premises,  forced  the  pulling  of  the  fires 
and  hurled  stones  at  the  fleeing  guards.  The  result  was  that  all  the 
employees  deserted  the  mine,  and  it  was  completely  filled  with  water 
which  came  in  when  the  pumps  stopped.  One  of  the  crowd  went 
up  to  the  top  of  the  coal  tipple  and  planted  a  flag  on  which  was  the 
legend,  "This  is  a  union  man's  country." 

Mr.  Bache,  after  the  riot  and  lawless  violence  of  April  6,  secured 
from  the  Federal  District  Court  an  injunction  against  those  union 
miners  and  others  whom  his  agents  could  identify  as  having  been 
present  and  having  taken  part.  This  included  the  president  and 
secretary-treasurer  of  the  District  No.  21  and  others.  Bache  then 
made  preparation  to  resume  mining.  Tlic  mine  was  full  of  water 
and  it  required  a  considerable  time  to  pump  it  out  and  get  things 
into  proper  condition.  Because  of  further  threats,  the  court  was 
applied  to  to  send  United  States  Deputy  Marslials  to  guard  the 
property,  and  they  were  sent.  Meant  inn;  the  work  of  rei)aration 
progressed,  and  Bache's  agents  were  engaged  in  securing  the  coming 
of  miners  and  other  employees  from  in  and  out  of  tlie  State  to  en- 


SECT.   I]  SUITS   BY   AND   AGAINST  LABOR   UNIONS  545 

large  his  force.  The  attitude  of  the  union  miners  continued  hostile, 
and  constant  effort  was  made  by  them  to  intercept  the  groups  of 
men  and  women  who  were  brought  in  })y  Bache  from  Tennessee  and 
elsewhere,  and  to  turn  them  away  either  by  peaceable  inducement 
or  by  threats  and  physical  intimidation.  The  vicinage  was  so  per- 
meated with  union  feeling  that  the  public  officers  did  not  hesitate 
to  manifest  their  enmity  toward  the  non-union  men,  and  made 
arrests  of  the  guards  and  others  who  were  in  Bache 's  employ  upon 
frivolous  charges.  Rumors  were  spread  abroad  through  the  county 
that  the  guards  employed  by  Bache  were  insulting  and  making 
indecent  proposals  to  very  young  girls  in  and  about  Prairie  Creek, 
and  P.  R.  Stewart,  the  president  of  District  No.  21,  in  the  presence 
of  some  ten  persons  on  the  public  street  of  Midland,  in  the  latter 
part  of  May,  denounced  the  guards  for  these  insults  and  proposals, 
and  said  that  he  would  furnish  the  guns  if  the  people  would  take 
them.  The  evidence  also  disclosed  that  through  the  secretary- 
treasurer  of  District  No.  21,  some  forty  or  more  Winchester  rifles 
were  bought  from  the  Remington  Arms  Co.  and  secretly  sent  to 
Hartford  for  the  purpose  intended  by  Stewart.  They  were  paid  for 
by  a  check  signed  by  Hull,  the  secretary-treasurer  of  District  No. 
21,  and  countersigned  by  Stewart,  the  president.  Conversations 
with  Stewart,  which  Stewart  did  not  take  the  stand  to  deny,  were 
sworn  to,  in  which  he  announced  that  he  would  not  permit  the  Prairie 
Creek  men  to  run  "non-union"  and  intended  to  stop  it.  McLachlin, 
who  was  a  member  of  the  Executive  Board  of  District  No.  21,  in  the 
first  week  of  July  gathered  up  some  of  the  guns,  exactly  how  many 
does  not  appear,  and  shipped  them  sixty  miles  to  McAlester,  Okla- 
homa, the  headquarters  of  District  No.  21.  It  appeared  that  guns 
of  like  make  and  caliber  were  used  by  the  assailants  in  the  attack 
on  the  Prairie  Creek  mine  on  July  17.  The  United  States  Marshals 
had  been  withdrawn  from  the  premises  of  Prairie  Creek  Mine  No.  4, 
before  July  1,  though  the  guards  were  retained. 

The  evidence  leaves  no  doubt  that  during  the  month  of  June  there 
was  a  plan  and  movement  among  the  union  miners  to  make  an  attack 
upon  Prairie  Creek  Mine  No.  4.  By  this  time  the  number  of  men 
secured  by  Bache  had  increased  to  seventy  or  eighty,  and  prepara- 
tions were  rapidly  going  on  for  a  resumption  of  mining.  The  tense 
feeling  in  respect  to  the  coming  attack  increased.  On  Sunday  night, 
July  12,  about  midnight,  there  was  a  fusillade  of  shots  into  the  vil- 
lage of  Frogtown,  a  small  collection  of  houses,  already  mentioned, 
about  a  mile  and  a  half  from  Prairie  Creek  mine.  A  number  of  people 
in  fright  at  the  cry  that  "the  scabs  were  surrounding  the  town"  left 
and  went  to  Hartford,  about  two  miles  away,  and  thereafter  guards 
were  put  out  at  Hartford  to  defend  that  town  against  attack  by 
the  guards  at  Prairie  Creek.  The  ridiculous  improbability  that  the 
guards  at  Prairie  Creek  who  were  engaged  in  protecting  themselves 
and  the  property  and  in  constant  fear  of  attack  should  make  this 


546  CORPORATE    FEATURES   OF   LABOR   UNIONS  [CHAP.  XI 

unprovoked  assault  upon  the  town  of  Frogtown,  is  manifest  from 
the  sHghtest  reading  of  the  evidence,  and  there  crept  in  through 
a  statement  of  one  of  the  defendants,  an  active  union  man,  to  a  wit- 
ness who  testified  to  it,  that  this  shooting  had  been  done  by  the 
Hartford  constable  Slankard,  and  himself,  in  order  to  arouse  the 
hostility  of  the  neighborhood  against  the  men  at  Prairie  Creek.  On 
the  night  of  the  16th,  the  union  miners'  families  who  lived  in  Prairie 
Creek  were  warned  bj^  friends  to  leave  that  vicinity  in  order  to  avoid 
danger,  and  at  4  o'clock  the  next  morning  the  attack  was  begun  by 
a  volley  of  many  shots  fired  into  the  premises.  A  large  force  with 
guns  attacked  the  mining  premises  from  all  sides  later  on  in  the  day. 

The  first  movement  toward  destruction  of  property  was  at  Mine 
No.  3,  a  short  distance  from  No.  4,  where  the  coal  washhouse  was 
set  on  fire.  The  occupants  of  the  premises  were  driven  out  except 
a  few  who  stayed  and  entrenched  themselves  behind  coal  cars  or 
other  protection.  Most  of  the  employees  and  their  families  fled  to 
the  ridges  behind  which  they  were  able  to  escape  danger  from  the 
flying  bullets.  The  forces  surrounding  the  mine  were  so  numerous 
that  by  one  o'clock  they  had  driven  out  practically  all  of  the  de- 
fenders and  set  fire  to  the  coal  tipple  of  Mine  No.  4,  and  destroyed 
all  the  plant  by  the  use  of  dynamite  and  the  match. 

The  assailants  took  some  of  Bache's  employees  prisoners  as  they 
were  escaping,  and  conducted  them  to  a  log  cabin  behind  the  school- 
house  near  the  mine  to  which  reference  has  already  been  made,  and 
where  the  first  riot  meeting  was  held.  The  four  or  five  prisoners 
were  taken  out  of  the  cabin  where  they  had  been  for  a  short  time 
confined,  and  two  of  them,  one  a  former  union  man,  were  deliberately 
murdered  in  the  presence  of  their  captors,  by  a  man  whose  identity 
it  was  impossible  to  establish.  The  evidence  in  this  case  clearly 
shows  that  Slankard,  the  constable  of  Hartford,  was  present  at  the 
killing,  and  that  the  men  who  were  killed  were  in  his  custody  on  the 
way,  as  he  said,  to  the  grand  jury.  He  was  subsequently  tried  before 
a  Sebastian  County  jury  for  murder,  and  was  acquitted  on  an  alibi. 
Slankard,  though  a  defendant  and  in  court,  did  not  take  the  stand 
in  this  case.  The  overwhelming  weight  of  the  evidence  establishes 
that  this  was  purely  a  union  attack,  under  the  guidance  of  District 
officers. 

The  testimony  offered  by  defendants  to  show  that  it  was  only 
an  uprising  of  the  indignant  citizens  of  the  countryside  really  tended 
to  confirm  the  guilt  of  the  District  No.  21.  Its  palpably  artificial 
character  showed  that  basis  for  it  had  been  framed  in  advance  for 
the  purpose  of  relieving  the  officers  of  District  No.  21  and  the  union 
miners  of  that  neigliborhood  from  responsibility  for  the  contemplated 
execution  of  tlieir  destructive  and  criminal  purpose.  It  is  a  doubt- 
ful question  whether  this  responsibility  was  not  so  clearly  established 
that  had  that  been  the  only  element  needed  to  justify  a  verdict,  the 
court  properly  might  have  directed  it.     The  president  of  District 


SECT.  I]  SUITS   BY    AND    AGAINST   LABOR    UNIONS  547 

No.  21  and  the  union  miners,  including  Slankard,  whose  agency  in 
and  leadership  of  this  attack  were  fully  proven,  were  present  in  the 
courtroom  at  the  trial,  but  did  not  take  the  stand  to  deny  the  facts 
established.  Indeed  they  had  been  previously  brought  to  trial  for 
conspiracy  to  defeat  the  federal  administration  of  justice  and  for 
contempt  because  of  these  very  acts,  had  pleaded  guilty  to  the 
charges  made,  and  had  been  sentenced  to  imprisonment,  and  their 
expenses  as  defendants  in  and  out  of  jail  had  been  paid  by  the  Dis- 
trict out  of  the  District  treasury  and  the  disbursements  approved 
by  the  District  in  convention. 

It  is  contended  on  behalf  of  District  No.  21  and  the  local  unions 
that  only  those  members  of  these  bodies  whom  the  evidence  shows 
to  have  participated  in  the  torts  can  be  held  civilly  liable  for  the 
damages.  There  was  evidence  to  connect  all  these  individual  de- 
fendants with  the  acts  which  were  done,  and  in  view  of  our  finding 
that  District  No.  21  and  the  unions  are  suable,  we  cannot  yield  to 
the  argument  that  it  would  be  necessary  to  show  the  guilt  of  every 
member  of  District  No.  21  and  of  each  union  in  order  to  hold  the 
union  and  its  strike  funds  to  answer.  District  No.  21  and  the  local 
unions  were  engaged  in  a  work  in  which  the  strike  was  one  of  the 
chief  instrumentalities  for  accomplishing  the  purpose  for  which  their 
unions  were  organized.  By  sec.  1  of  Article  12  of  the  constitution 
of  District  No.  21,  it  is  provided  that: 

"When  trouble  of  a  legal  character  arises  between  the  members 
of  local  unions  and  their  employer,  the  mine  committee  and  officers 
shall  endeavor  to  effect  an  amicable  adjustment,  and  failing  they 
shall  immediately  notify  the  officers  of  the  district  and  said  district 
officers  shall  immediately  investigate  the  cause  of  the  complaint, 
and  failing  to  effect  a  peaceful  settlement  upon  a  basis  that  would 
be  equitable  and  just  to  the  aggrieved  members,  finding  that  a  strike 
would  best  subserve  the  interests  of  the  localities  affected,  they 
may,  with  the  consent  and  approval  of  the  officers,  order  a  strike." 

Thus  the  authority  is  put  by  all  the  members  of  the  District  No. 
21  in  their  officers  to  order  a  strike,  and  if  in  the  conduct  of  that 
strike  unlawful  injuries  are  inflicted,  the  District  organization  is 
responsible  and  the  fund  accumulated  for  strike  purposes  may  be 
subjected  to  the  payment  of  any  judgment  which  is  recovered. 

(b)  It  was  necessary,  however,  in  order  to  hold  District  No.  21 
liable  irTthis  suit  under  the  Anti-Trust  Act,  to  establish  that  this 
conspiracy  to  attack  the  Bache-Denman  mines  and  stop  the  non- 
untmr- employment  there,  was  with  intent  to  restrain  interstate 
comnTerce' and  to  monopolize~nie"same,"  and  to  subject  it  to  the 
control  of  the  union.  The  evidence  upon  which  the  plaintiffs  relied 
to  establish  this  and  upon  which  the  judgment  of  the  trial  court  and 
of  the  Court  of  Appeals  went,  consisted  of  a  history  of  the  relations 
between  the  International  Union  and  the  union  coal  operators  of 
certain  so-called  competitive  districts  from  1898  until  1914.     The 


548  CORPORATE    FEATURES   OF   LABOR   UNIONS  [CHAP.  XI 

miners  of  Ohio,  Indiana  and  Illinois,  large  bituminous  coal  produc- 
ing States,  were  members  of  the  union  and  the  coal  operators  of 
those  States,  in  spite  of  strikes  and  lockouts  from  time  to  time,  were 
properly  classed  as  union  operators.  They  met  yearly  in  conference 
with  the  union's  representatives  to  agree  upon  terms  of  employment 
from  April  1st  to  April  1st.  In  these  conferences  the  operators 
frequently  complained  that  the  competition  of  many  non-union 
mines  in  Western  Pennsylvania  and  the  whole  of  West  Virginia  was 
ruinous  to  their  business  because  of  the  low  cost  of  production  of  coal 
in  such  mines  due  to  the  lower  wages  and  less  expensive  conditions 
of  working  than  in  union  mines,  and  urged  that  something  must  be 
done  to  stop  this,  or  that  the  union  scale  of  wages  be  reduced.  By 
sec.  8  of  the  contract  between  the  operators  of  the  Central  Com- 
petitive Coal  Field  and  the  United  Mine  Workers  of  America,  dated 
Chicago,  January  28,  1898,  it  was  stipulated  "That  the  United  Mine 
Workers  organization,  a  party  to  this  contract,  do  hereby  further 
agree  to  afford  all  possible  protection  to  the  trade  and  to  other  parties 
hereto  against  any  unfair  competition  resulting  from  a  failure  to 
maintain  scale  rates." 

From  this  time  on  in  every  annual  conference  until  after  the 
controversy  in  the  case  before  us  in  1914,  the  subject  recurred.  It 
does  not  appear  when,  if  at  any  time,  wages  were  reduced  because 
of  this  plea  by  the  operators.  Sometimes  the  contention  of  the 
operators  as  to  the  effect  of  non-union  competition  was  conceded  and 
greater  activity  in  unionizing  non-union  territory  was  promised. 
Again  pleas  were  made  by  the  miners'  representatives  of  the  great 
amount  of  money  expended  by  the  union  and  in  one  or  two  instances, 
of  the  sacrifice  of  human  lives  to  effect  this  result.  Again  the  union 
leaders  flatly  refused  to  be  further  affected  by  the  argument  and 
charged  that  the  non-union  competition  of  West  Virginia,  which 
was  always  the  principal  factor,  was  only  possible  because  some  of 
the  most  important  union  operators  in  Ohio  and  the  central  com- 
petitive field  really  were  interested  as  non-union  operators  in  West 
Virginia.  There  was  considerable  discussion  as  to  the  non-union 
competition  of  Kentucky  fields  as  a  basis  for  the  operators'  com- 
plaints. At  times,  there  were  suggestions  from  the  miners'  side 
that  the  operators  ought  to  contribute  funds  to  enable  the  cam- 
paign of  unionizing  to  go  on,  but  they  never  seem  to  have  met  with 
favor.  .  .  . 

At  the  convention  [of  the  union]  in  1906,  a  resolution  that  Dis- 
tricts 13,  14,  21,  24  and  25,  be  admitted  to  the  interstate  joint  con- 
ferences, was  adopted.  This  was  urged  by  President  Mitchell  of 
the  Union,  and  the  Secretary,  W.  B.  Wilson.     The  latter  said: 

"If  I  understand  the  principle  upon  which  this  movenient  is 
based,  it  is  to  bring  into  the  joint  conference  those  operators  and 
those  miners  of  the  Southwestern  District  whose  competitive  busi- 
ness is  closely  related  to  each  other;    and  in  asking  that  the  oper- 


SECT.  I]  SUITS   BY   AND   AGAINST  LABOR   UNIONS  549 

ators  of  the  Southwestern  District  be  admitted  to  this  conference, 
we  are  simply  carrying  out  that  principle.  The  coal  mined  in  West- 
ern Pennsylvania  comes  in  immediate  competition  and  direct  com- 
petition with  Ohio;  that  mined  in  Ohio,  as  well  as  that  in  Pennsyl- 
vania, comes  in  competition  with  Indiana  and  Illinois;  that  mined 
in  Illinois  comes  in  contact  with  Iowa;  that  mined  in  Iowa  comes  in 
competition  with  Missouri  and  coal  mined  in  Missouri  comes  in 
competition  with  Kansas,  Arkansas,  and  the  Indian  Territory. 
They  are  all  related  to  one  another.  They  are  all  competitors  with 
one  another,  and  it  is  but  just  and  fair  that  each  of  these  fields  should 
have  a  representation  in  the  joint  conference  that  sets  a  base  for  the 
prices  of  the  ensuing  year.  This  is  the  first  conference  that  is  held. 
Whatever  wages  are  agreed  upon  here,  whether  it  is  an  increase  in 
wages,  a  decrease  in  wages,  improved  conditions  or  otherwise,  it 
sets  the  pace  for  other  districts  and  those  other  districts  have  no 
voice  in  saying  what  that  price  shall  be.  In  order  to  avoid  that 
condition  of  affairs,  in  order  to  give  justice  to  the  operators  and 
miners  in  other  fields  not  represented  here  at  the  present  time,  we 
ask  you  as  a  matter  of  fairness  and  justice  to  permit  those  whose 
operators  and  miners  are  represented  here,  to  participate  in  this 
j  oint  -conference . ' ' 

In  1910,  Bache,  as  a  union  operator,  took  part  for  his  mines  in 
fixing  the  scale  of  wages  in  District  No.  21.  Later  on,  at  the  time 
of  a  conference,  he  made  a  separate  scale  with  the  District  No.  21 
more  favorable  in  some  respects  than  that  subsequently  agreed 
on  in  the  conference  with  the  other  operators,  and  he  was  for  that 
reason  expelled  from  the  operators'  association.  He  was  permitted 
at  a  later  time  to  rejoin  it,  but  he  had  some  litigation  with  it  in 
respect  to  their  funds,  the  nature  of  which  is  not  disclosed  by  the 
record. 

In  1913  and  1914,  and  in  the  years  preceding,  the  International 
Union  had  carried  on  two  strikes  of  great  extent  covering  the  Colo- 
rado fields,  and  the  Ohio  and  West  Virginia  fields,  in  which  very 
large  sums  of  money  had  been  expended  and  there  was  much  law- 
lessness and  violence.  Its  treasury  had  been  drained  and  it  bor- 
rowed $75,000  from  District  No.  21  during  this  period. 

The  foregoing  will  enable  one  to  acquire  a  fair  idea  of  the  national 
situation,  shown  by  the  record,  in  respect  to  the  mining  and  sale 
of  coal  so  far  as  it  bears  upon  this  case  and  upon  this  state  of  fact. 
The  plaintifTs  charge  that  there  has  been  and  is  a  continuously  operat- 
ing conspiracy  between  union  coal  operators  and  the  International 
Union  to  restrain  interstate  commerce  in  coal  and  to  monopolize 
it,  and  that  the  work  of  District  No.  21  at  Prairie  Creek  was  a  step 
in  that  conspiracy  for  which  it  can  be  held  liable  under  the  Anti- 
Trust  Act. 

Coal  mining  is  not  interstate  commerce,  and  the  power  of  Con- 
gress does  not  extend  to  its  regulation  as  such.    In  Hammer  v.  Dagen- 


550  CORPORATE    FEATURES   OF   LABOR   UNIONS         [CHAP.  XI 

hart,  247  U.  S.  251,  272,  we  said:  "The  making  of  goods  and  the 
mining  of  coal  are  not  interstate  commerce,  nor  does  the  fact  that 
these  things  are  to  be  afterwards  shipped  or  used  in  interstate  com- 
merce make  their  production  a  part  thereof.  Delaware,  Lackawanna 
&  Western  R.  R.  Co.  v.  Yurkonis,  238  U.  S.  439."  Obstruction  to 
coal  mining  is  not  a  direct  obstruction  to  interstate  commerce  in 
coal,  although  it,  of  course,  may  affect  it  by  reducing  the  amount 
of  coal  to  be  carried  in  that  commerce.  We  have  had  occasion  to 
consider  the  principles  governing  the  validity  of  congressional  re- 
straint of  such  indirect  obstructions  to  interstate  commerce  in  Swift 
V.  United  States,  196  U.  S.  375;  United  States  v.  Patten,  226  U.  S. 
525;  United  States  v.  Ferger,  250  U.  S.  199;  Wisconsin  R.  R.  Com- 
mission V.  C.  B.  &  Q.  R.  R.,  decided  February  27,  1922;  and  Staf- 
ford V.  Wallace,  decided  May  1,  1922.  It  is  clear  from  these  cases 
/  that  if  Congress  deems  certain  recurring  practices  though  not  really 
'  part  of  interstate  commerce,  likely  to  obstruct,  restrain  or  burden 
it,  it  has  the  power  to  subject  them  to  national  supervision  and 
restraint.  Again,  it  has  the  power  to  punish  conspiracies  in  which 
such  practices  are  part  of  the  plan,  to  hinder,  restrain  or  monopolize 
interstate  commerce.  But  in  the  latter  case,  the  intent  to  injure, 
obstruct  or  restrain  interstate  commerce  must  appear  as  an  obvious 
consequence  of  what  is  to  be  done,  or  be  shown  by  direct  evidence  or 
other  circumstances. 

What  really  is  shown  by  the  evidence  in  the  case  at  bar,  drawn 
from  discussions  and  resolutions  of  conventions  and  conference, 
is  the  stimulation  of  union  leaders  to  press  their  unionization  of 
non-union  mines  not  only  as  a  direct  means  of  bettering  the  condi- 
tions and  wages  of  their  workers,  but  also  as  a  means  of  lessening 
interstate  competition  for  union  operators  which  in  turn  would 
lessen  the  pressure  of  those  operators  for  reduction  of  the  union 
scale  or  their  resistance  to  an  increase.  The  latter  is  a  secondary  or 
ancillary  motive  whose  actuating  force  in  a  given  case  necessarily  is 
dependent  on  the  particular  circumstances  to  which  it  is  sought  to 
make  it  applicable.  If  unlawful  means  had  here  been  used  by  the 
National  body  to  unionize  mines  whose  product  was  important, 
actually  or  potentially,  in  affecting  prices  in  interstate  conmierce, 
the  evidence  in  question  would  clearly  tend  to  show  that  that  body 
was  guilty  of  an  actionable  conspiracy  under  the  Anti-Trust  Act. 
This  principle  is  involved  in  the  decision  of  the  case  of  Hitchman 
Coal  Oj.  v.  Mitchell,  245  U.  S.  229,  and  is  restated  in  American 
Steel  Foundries  v.  Tri-City  Central  Trades  Council,  decided  Decem- 
ber 5,  1921.  But  it  is  not  a  permissible  interpretation  of  the  evidence 
in  question  that  it  tends  to  show  that  the  motive  indicated  thereby 
actuates  every  lawless  strike  of  a  local  and  sporadic  character,  not 
initiated  by  the  National  body  but  by  one  of  its  subordinate  sub- 
divisions. The  very  fact  that  local  strikes  are  provided  for  in  the 
union's  constitution,  and  so  may  not  engage  the  energies  or  funds 


SECT.  I]  SUITS   BY   AND   AGAINST   LABOR   UNIONS  551 

of  the  National  body,  confirms  this  view.  Such  a  local  case  of  a 
lawless  strike  must  stand  on  its  own  facts  and  while  these  conven- 
tions and  discussions  may  reveal  a  general  policy,  the  circumstances 
or  direct  evidence  should  supply  the  link  between  them  and  the 
local  situation  to  make  an  unlawful  local  strike  not  initiated  or 
financed  by  the  main  organization,  a  step  in  an  actionable  con- 
spiracy to  restrain  the  freedom  of  interstate  commerce  which  the 
Anti-Trust  Act  was  intended  to  protect. 

This  case  is  very  different  from  Loewe  v.  Lawlor,  208  U.  S.  274. 
There  the  gist  of  the  charge  held  to  be  a  violation  of  the  Anti-Trust 
Act  was  the  effort  of  the  defendants,  members  of  a  trades  union,  by 
a  boycott  against  a  manufacturer  of  hats  to  destroy  his  interstate 
sales  in  hats.    The  direct  object  of  attack  was  interstate  commerce. 

So,  too,  it  differs  from  Eastern  States  Retail  Lumber  Dealers' 
Association  v.  United  States,  234  U.  S.  600,  where  the  interstate 
retail  trade  of  wholesale  lumber  men  with  consumers  was  restrained 
by  a  combination  of  retail  dealers  by  an  agreement  among  the  latter 
to  blacklist  or  boycott  any  wholesaler  engaged  in  such  retail  trade. 
It  was  the  commerce  itself  which  was  the  object  of  the  conspiracy. 
In  United  States  v.  Patten,  226  U.  S.  525,  running  a  corner  in  cotton 
in  New  York  City  by  which  the  defendants  were  conspiring  to  obtain 
control  of  the  available  supply  and  to  enhance  the  price  to  all  buyers 
in  every  market  of  the  country  was  held  to  be  a  conspiracy  to  re- 
strain interstate  trade  because  cotton  was  the  subject  of  interstate 
trade  and  such  control  would  directly  and  materially  impede  and 
burden  the  due  course  of  trade  among  the  States  and  inflict  upon 
the  public  the  injuries  which  the  Anti-Trust  Act  was  designed  to 
prevent.  Although  running  the  corner  was  not  interstate  commerce, 
the  necessary  effect  of  the  control  of  the  available  supply  would  be 
to  obstruct  and  restrain  interstate  commerce  and  so  the  conspirators 
were  charged  with  the  intent  to  restrain.  The  difference  between 
the  Patten  case  and  that  of  Ware  &  Leland  v.  Mobile  County,  209 
U.  S.  405,  illustrates  a  distinction  to  be  drawn  in  cases  which  do  not 
involve  interstate  commerce  intrinsically  but  which  may  or  may  not 
be  regarded  as  affecting  interstate  commerce  so  directly  as  to  be 
within  the  federal  regulatory  power.  In  the  Ware  &  Leland  case, 
the  question  was  whether  a  State  could  tax  the  business  of  a  broker 
dealing  in  contracts  for  the  future  delivery  of  cotton  where  there 
was  no  obligation  to  ship  from  one  State  to  another.  The  tax  was 
sustained  and  dealing  in  cotton  futures  was  held  not  to  be  interstate 
commerce,  and  yet  thereafter  such  dealings  in  cotton  futures  as  were 
alleged  in  the  Patten  case  where  they  were  part  of  a  conspiracy  to 
bring  the  entire  cotton  trade  within  its  influence,  were  held  to  be  in 
restraint  of  interstate  commerce.  And  so  in  the  case  at  bar,  coal 
mining  is  not  interstate  commerce  and  obstruction  of  coal  mining, 
though  it  may  prevent  coal  from  going  into  interstate  commerce, 
is  not  a  restraint  of  that  commerce  unless  the  obstruction  to  mining 


552  CORPORATE    FEATURES   OF   LABOR   UNIONS  [CHAP.  XI 

is  intended  to  restrain  commerce  in  it  or  has  necessarily  such  a  direct, 
material  and  substantial  effect  to  restrain  it  that  the  intent  reason- 
ably must  be  inferred. 

In  the  case  at  bar,  there  is  nothing  in  the  circumstances  or  the 
declarations  of  the  parties  to  indicate  that  Stewart,  the  president 
of  District  No.  21,  or  Hull,  its  secretary-treasurer,  or  any  of  their 
accomplices  had  in  mind  interference  with  interstate  commerce  or 
competition  when  they  entered  upon  their  unlawful  combination 
to  break  up  Bache's  plan  to  carry  on  his  mines  with  non-union  men. 
The  circumstances  were  ample  to  supply  a  full  local  motive  for  the 
conspiracy.  Stewart  said:  "We  are  not  going  to  let  them  dig  coal 
—  the  scabs."  His  attention  and  that  of  his  men  was  fastened  on 
the  presence  of  union  men  in  the  mines  in  that  local  community. 
The  circumstance  that  a  car  loaded  with  coal  and  billed  to  a  town 
in  Louisiana  was  burned  by  the  conspirators  has  no  significance 
upon  this  head.  The  car  had  been  used  in  the  battle  by  some  of 
Bache's  men  for  defense.  It  offered  protection  and  its  burning  was 
only  a  part  of  the  general  destruction. 

Bache's  breach  of  his  contract  with  the  District  No.  21  in  em- 
ploying non-union  men  three  months  before  it  expired,  his  attempt 
to  evade  his  obligation  by  a  hugger-mugger  of  his  numerous  cor- 
porations, his  advertised  anticipation  of  trespass  and  violence  by 
warning  notices,  by  enclosing  his  mining  premises  with  a  cable  and 
stationing  guards  with  guns  to  defend  them,  all  these,  in  the  heart 
of  a  territory  that  had  been  completely  unionized  for  years  were 
calculated  to  arouse  a  bitterness  of  spirit  entirely  local  among  the 
union  miners  against  a  policy  that  brought  in  strangers  and  excluded 
themselves  or  their  union  colleagues  from  the  houses  they  had  oc- 
cupied and  the  wages  they  had  enjoyed.  In  the  letter  which  Bache 
dictated  in  favor  of  operating  the  mines  on  a  non-union  basis,  he 
said,  "To  do  this  means  a  bitter  fight  but  in  my  opinion  it  can  be 
accomplished  by  proper  organization."  Bache  also  testified  that 
he  was  entering  into  a  matter  he  knew  was  perilous  and  dangerous 
to  his  companies  because  in  that  section  there  was  only  one  other 
mine  running  on  a  non-union  basis.  Nothing  of  this  is  recited  to 
justify  in  the  slightest  the  lawlessness  and  outrages  committed, 
but  only  to  point  out  that  as  it  was  a  local  strike  within  the  mean- 
ing of  the  International  and  District  constitutions,  so  it  was  in  fact 
a  local  strike,  local  in  its  origin  and  motive,  local  in  its  waging,  and 
local  in  its  felonious  and  murderous  ending. 

But  it  is  said  that  these  District  officers  and  their  lieutenants 
among  the  minors  must  be  charged  with  an  intention  to  do  what 
would  be  the  natural  result  of  their  own  acts,  that  they  nuist  have 
known  that  obstruction  to  mining  coal  in  the  Bache-Deiiman  mines 
would  keep  75  per  cent  of  their  output  from  being  sliippcMl  out  of 
the  State  into  interstate  competition,  and  to  that  extent  would  lu>lp 


SECT.  I]  SUITS  BY   AND   AGAINST  LABOR   UNIONS  553 

union  operators  in  their  competition  for  business.  In  a  national 
production  of  from  ten  to  fifteen  million  tons  a  week,  or  in  a  pro- 
duction in  District  No.  21  of  150,000  tons  a  week,  five  thousand  tons 
a  week  which  the  Bache-Denman  mines  in  most  prosperous  times 
could  not  exceed,  would  have  no  appreciable  effect  upon  the  price  of 
coal  or  non-union  competition.  The  saving  in  the  price  per  ton  of 
coal  under  non-union  conditions  was  said  by  plaintiff's  witnesses  to 
be  from  seventeen  to  twenty  cents,  but  surely  no  one  would  say  that 
such  saving  on  5000  tons  would  have  a  substantial  effect  on  prices  of 
coal  in  interstate  conmierce.  Nor  could  it  be  inferred  that  Bache 
intended  to  cut  the  price  of  coal.  His  purpose  was  probably  to 
pocket  the  profit  that  such  a  reduction  made  possible.  If  it  be  said 
that  what  District  No.  21  feared  was  that  if  Bache  were  successful, 
the  defection  among  union  operators  would  spread  and  ultimately 
the  whole  District  field  of  District  No.  21  in  Arkansas,  Oklahoma 
and  Texas  would  become  non-union,  and  interstate  commerce  would 
then  be  substantially  affected,  it  may  be  answered  that  this  is  remote 
and  no  statement  or  circumstance  appears  in  the  record  from  which 
it  can  be  inferred  that  the  participants  in  the  local  strike  had  such 
a  possibility  in  mind  or  thought  they  were  thus  protecting  union 
operators  in  a  control  or  monopoly  of  interstate  commerce.  The  re- 
sult of  our  consideration  of  the  entire  record  is  that  there  was  no 
evidence  submitted  to  the  jury  upon  which  they  properly  could 
find  that  the  outrages,  felonies  and  murders  of  District  21  and  its 
companions  in  crime  were  committed  by  them  in  a  conspiracy  to 
restrain  or  monopolize  interstate  commerce.  The  motion  to  direct 
the  jury  to  return  a  verdict  for  the  defendants  should  have  been 
granted. 

Fifth.  These  conclusions  make  it  unnecessary  to  examine  the  ob- 
jection which  the  plaintiffs  in  error  make  to  the  supplemental  charge 
of  the  court. 

The  case  has  been  prepared  by  counsel  for  the  plaintiffs  with 
rare  assiduity  and  ability.  The  circumstances  are  such  as  to  awaken 
regret  that  in  our  view  of  the  federal  jurisdiction,  we  cannot  affirm 
the  judgment.  But  it  is  of  far  higher  importance  that  we  should 
preserve  inviolate  the  fundamental  limitations  in  respect  to  the 
federal  jurisdiction. 

The  judgment  is  reversed,  and  the  case  remanded  to 
the  District  Court  for  further  proceedings  in  con- 
formity to  this  opinion.^ 

^  See  also  the  cases  in  Section  3,    infra,  pp.  577  et  seq. 


554  CORPORATE    FEATURES   OF   LABOR   UNIONS  [CHAP.  XI 

Section  2.     Ownership  of  Property 

EAST    HADDAM    CENTRAL    BAPTIST    CHURCH  v.  EAST 
HADDAM  BAPTIST  ECCLESIASTICAL  SOCIETY 

Supreme  Court  of  Errors  of  Connecticut.     1877 

44  Conn.  259 

Carpenter,  J.  The  petitioners  allege  that  they  are  a  corpora- 
tion, and,  as  such,  the  owners  of  a  church  edifice  and  a  parsonage; 
that  a  pretended  meeting  of  the  church  which  constitutes  the  cor- 
poration was  secretly  and  fraudulently  held,  at  which  it  was  voted 
to  convey  the  property  to  the  respondents,  and  that  it  was  so  con- 
veyed; that  the  meeting  was  held  without  any  legal  notice  or  warn- 
ing; that  the  respondents  are  using  the  property  and  have  hired 
and  put  into  the  church  and  parsonage  the  Rev.  Mr.  Beebe,  a  person 
who  is  not  a  regular  Baptist  clergyman;  and  that  the  petitioners 
have  lost  the  use  of  the  property,  and  that  the  deed  is  a  cloud  upon 
their  title. 

They  pray  that  the  respondents  and  the  said  Beebe  may  be  re- 
strained from  using  the  property,  and  from  interfering  with  the 
petitioners  in  their  use  of  it,  and  that  the  deed  may  be  decreed  to  be 
null  and  void. 

It  is  obvious  from  this  statement  of  the  case  that  the  allegation 
of  title  is  essential  to  the  cause  of  action.  If  the  petitioners  have  no 
title  they  have  no  standing  in  court.  It  will  be  observed  that  they 
do  not  come  into  court  as  individuals  having  an  equitable  interest 
in  the  property,  seeking  the  aid  of  a  court  of  chancery  to  enforce  a 
trust  and  carry  out  the  intention  of  the  donors,  but  they  come  claim- 
ing to  be  the  absolute  owners,  not  only  of  an  ecjuitable  interest,  but 
of  the  legal  title. 

The  report  of  the  committee  shows  that  the  petitioners  are  not  a 
corporation  but  a  voluntary  association.  As  such  they  are  not  the 
legal  owners  of  the  property  in  question,  and  by  the  laws  of  this 
state  cannot  own  real  estate.  On  this  ground  alone  it  is  difficult  to 
see  upon  what  principle  the  petitioners  can  claim  the  relief  prayed  for. 

But  this  is  not  all.  The  land  on  which  the  church  edifice  stands 
was  deeded  in  1844  by  George  Higgins  to  Elijah  Sponcor.  In  1849 
Spencer  conveyed  it  to  Stanton  S.  Card  and  others,  trustees  of  the 
First  Baptist  Society  in  East  Haddam  —  presumptively  a  corpora- 
tion. In  1854  the  society  deeded  it  to  said  Card  and  others,  trustees 
for  the  church,  "for  the  sole  use  of  the  First  Baptist  Church,  to  be 
held  by  said  trustees  subject  to  the  control  and  direction  of  the 
church,  as  shall  appear  by  their  vote  at  any  meeting  of  said  church, 
called  or  assembled  in  the  ordinary  manner  of  holding  their  church 
meetings." 


SECT.  II]  OWNERSHIP   OF   PROPERTY  555 

Wc  do  not  find  that  the  title  ever  passed  from  these  trustees. 
It  appears  that  they,  in  behalf  of  the  church,  took  possession  of 
the  property  and  continued  to  hold  possession  for  about  twenty 
years.  The  legal  title  therefore  appears  to  be  in  the  trustees  to 
whom  it  was  conveyed  in  1854,  and,  as  at  present  advised,  we  are 
unable  to  see  how  the  deed  referred  to  in  the  petition,  which  was 
dated  April  20th,  1875,  purporting  to  be  executed  by  "the  Central 
East  Haddam  Baptist  Church,"  can  have  any  effect  upon  the  title. 

The  other  piece  of  property,  the  parsonage,  was  conveyed  in  1869 
by  John  Comstock  to  Henry  J.  Holmes  and  others,  trustees  for  said 
church,  "to  be  used  as  a  parsonage  forever."  So  far  as  the  record 
discloses  the  title  is  in  these  trustees  at  the  present  time. 

It  is  quite  clear  therefore  that  the  petitioners  are  not  the  legal 
owners  of  the  property  in  dispute ;  but  so  far  as  we  know  the  property 
is  owned  by  trustees  who  are  not  parties  to  this  proceeding. 

It  is  possible  that  the  trustees  have  allowed  the  property  to  be 
used  for  other  purposes  than  those  for  which  it  was  originally  in- 
tended; but  before  the  court  can  properly  take  any  action  in  respect 
to  that  matter,  all  persons  interested  in  it,  legal  as  well  as  equitable, 
should  be  made  parties  to  the  proceeding  and  have  an  opportunity 
to  be  heard. 

For  these  reasons  we  advise  the  Superior  Court  to  dismiss  the  bill. 

In  this  opinion  the  other  judges  concurred.^ 


BROWN  V.  STOERKEL 
Supreme  Court  of  Michigan.     1889 

74  Mich.  269 

Morse,  J.    This  is  an  action  of  assumpsit. 

The  declaration  contained  three  special  counts,  but  the  trial  was 
had  upon  the  third  count  alone,  which  alleged,  in  substance,  that 
the  defendants  had  converted  and  appropriated  to  their  own  use 
moneys  belonging  to  Local  Assembly  No.  8,104  of  the  Knights  of 
Labor,  which  was  an  unincorporated  association,  and  that  the  mem- 
bers of  said  local  assembly  had  assigned  their  right,  title,  and  interest 

1  In  most  jurisdictions  according  to  the  orthodox  view,  except  where  statutes 
provide  otherwise,  a  grant  or  devise  of  realty  to  an  unincorporated  association  is 
void,  since  the  association  as  a  body  is  said  to  be  incapable  of  taking  title  to  realty 
and  the  individual  members  were  not  intended  to  take  as  individuals.  In  the 
case  of  In  re  Amos,  [1891]  3  Ch.  159,  accordingly,  a  devise  of  land  to  the  "  BoUer 
Makers  and  Iron  Ship  Builders'  Society,"  an  unincorporated  trade  union,  was 
held  invalid.  See  also,  Greene  v.  Dennis,  6  Conn.  293,  299;  Brewster  v.  McCall, 
15  Conn.  274,  294;  Barker  v.  Wood,  9  Mass.  419;  Marx  v.  McGlynn,  88  N.  Y. 
357,  376;  Goesele  v.  Bimeler,  5  McLean  (U.  S.),  223,  229  (affd.  in  14  How.  589). 
So,  it  has  been  held  that  "a  grant  to  such  association  eo  nomine  would  pass  no 
title."    German  Land  Association  v.  Scholler,  10  Minn.  331,  338. 

But  property  may  be  acquired  by  trustees  for  the  benefit  of  an  unincorporated 
association.     Martin  v.  Board  of  Directors  of  German  Reformed  Church,  149 


556  CORPORATE    FEATURES   OF   LABOR   UNIONS  [CHAP.  XI 

in  said  moneys  over  to  plaintiff.  The  jury,  in  the  Wayne  Circuit 
Court,  returned  a  general  verdict  in  favor  of  the  plaintiff  for  the 
sum  of  $355.50,  but,  in  response  to  special  questions  submitted  to 
them,  found  as  follows: 

"1.  Did  all  the  members  of  the  530  members  contributing  money 
to  the  Peninsular  Car-works  Assembly  of  Knights  of  Labor  intend 
that  the  money  so  contributed  should  be  used  as  initiation  fees  in 
a  local  assembly  of  the  Knights  of  Labor  as  existing  throughout  the 
United  States? 
"A.   Yes. 

"2.   Did  all  the  members  interested  in  the  fund  contributed  join 
in  the  assignment  to  plaintiff? 
"A.   No. 

"3.   Did  the  members,  organizing  under  the  name  of  the  *  Penin- 
sular Car-works  Assembly,'  intend,  when  they  organized,  to  form 
another  and  distinct  organization,  which  should  be  a  successor  to 
the  association  so  formed? 
"A.   Yes. 

"4.   Did  any  member  who  originally  joined  the  Peninsular  Car- 
works  Association  of  the  Knights  of  Labor  ever  withdraw  from  the 
order? 
"A.   No. 

"5.   Was  it  ever  intended  that  the  money  contributed  by  the 
530  original  members  should  become  the  property  of  Local  Assembly 
No.  8,104? 
"A.   Yes." 

A  motion  was  therefore  made  by  the  defendants  that  the  general 
verdict  of  the  jury  be  set  aside,  and  that  judgment  be  entered  upon 
the  second  special  verdict  found  by  the  jury,  because  the  jury  an- 
swered to  the  second  special  question  that  all  the  members  "in- 
terested" in  the  fund  contributed  did  not  join  in  the  assignment  to 
the  plaintiff.     This  motion  was  granted,  and  judgment  thereupon 

Wis.  19;  Attorney  General  v.  The  Proprietors  of  Meeting  House,  3  Gray,  1; 
Earle  v.  Wood,  8  Gush.  430,  445;  Mendenhall  v.  First  New  Church  Soc.,' 177 
Ind.  336.  A  few  courts  have  decided  otherwise,  Trustees  v.  Trustees,  84  Md. 
173;   Little  v.  Willford,  31  Minn.  173;   Downing  v.  Marshall,  23. N.  Y.  366,  382. 

So,  it  has  been  held  that  an  unincorporated  association  cannot  gain  title  to 
realty  by  prescription.    Stewart  v.  White,  128  Ala.  202,  208. 

Some  .states,  however,  have  followed  a  more  liberal  course.  It  has  been  held 
that  a  grant  of  land  to  an  unincorporated  as.sociation  may  be  construed  as  a  grant 
to  the  individual  members  as  tenants  in  common  (Byam  t'.  Bickford,  140  Mass. 
31).  See  also,  Curtiss!'.  Hoy t,  19  Conn.  154;  Guild  t;.  Allen,  28  R.  I.  430.  Com- 
pare Johnson  v.  Mayne,  4  Iowa,  180;  Congregational  Unitarian  Society  v.  Hale, 
51  N.  Y.  Supp.  704,  707;  Glover  v.  Baker,  76  N.  H.  393,  402. 

On  the  other  hand,  a  few  courts  have  held  even  bequests  of  personalty  to  an 
unincorporated  a.ssociation  void.  State  v.  Warren,  28  Md.  338,  352;  Owens  v. 
Methodist  Soc,  14  N.  Y.  380,  385;  Re  Compton's  Will,  131  N.  Y.  Supp.  183; 
Ely  V.  Ely,  148  N.  Y.  Supp.  691,  707;  Reeves  v.  Reeves,  73  Tenn.  644,  647;  Bible 
Soc.  V.  Pendleton,  7  W.  Va.,  79,  86.  The  weight  of  authority,  however,  is  other- 
wise. 


SECT.  II]  OWNERSHIP   OF   PROPERTY  557 

entered  for  the  defendants.  The  plaintiff  brings  error,  and  here 
insists  that  judgment  be  entered  on  the  general  verdict  in  his  favor 
for  the  amount  of  such  verdict. 

Was  the  special  verdict  inconsistent  with  the  general  one?  This 
is  the  point  before  us.  In  order  to  fully  understand  the  question 
to  be  determined,  it  will  be  necessary  to  state  the  facts,  about  which 
there  is  but  little,  if  any,  dispute. 

In  May,  1886,  there  was  a  strike  at  the  Peninsular  Car- works. 
The  men  in  the  works  formed  a  preliminary  organization,  prepara- 
tory to  forming  a  local  assembly  of  the  Knights  of  Labor.  This 
preliminary  body  was  called  the  "Peninsular  Car-works  Assembly," 
and  was  designed  by  its  organizers  to  hold  the  workmen  together 
until  they  could  be  initiated  in  squads  into  the  Knights  of  Labor. 
When  this  was  completed,  the  preliminary  organization  ceased  to 
exist,  and  the  society  known  as  "Local  Assembly  No.  8,104  of  the 
Knights  of  Labor,"  was  formed,  under  the  rules  and  laws  of  that 
order.  The  persons  joining  the  preliminary  organization  were  re- 
quired to  pay  one  dollar,  and  also  another  dollar  when  they  were 
initiated  into  the  local  assembly  of  the  Knights  of  Labor.  The  fund 
thus  raised  was  to  be  used  in  assisting  members  in  need.  Some  of 
it  was  thus  used,  and  in  paying  expenses,  and  some  was  deposited 
in  the  People's  Savings  Bank  of  De'troit.  The  money  was  put  in  the 
hands  of  Edward  Heurion  and  the  defendants,  and  they  made  the 
deposit,  in  all  of  $400.  The  defendants,  Gregory  and  Stoerkel, 
drew  this  money  from  the  bank,  —  $50  July  8,  1886;  and  the  bal- 
ance December  20,  1886.  Gregory  was  treasurer  of  the  association, 
and  Stoerkel  one  of  the  trustees,  at  the  time  the  deposit  was  made. 
Heurion  was  recording  secretary.  The  defendants,  on  demand, 
refused  to  pay  the  money  over  to  a  committee  of  the  local  assembly 
or  to  plaintiff.  Both  of  these  associations  were  voluntary  and  unin- 
corporated. There  were  530  members  of  the  preliminary  organiza- 
tion. Some  of  the  members  did  not  go  into  the  local  assembly; 
quite  a  large  number  of  them.  One  witness  testifies  that  not  over 
100  of  them  went  into  the  Knights  of  Labor  Assembly  No.  8,104; 
others  swear  that  about  200  joined.  The  assignment  claimed  by  the 
plaintiff  was  proven  by  a  resolution  passed  at  a  meeting  of  Local 
Assembly  No.  8,104,  March  26,  1887: 

"Committee  on  the  defaulters'  question,  and  Bro.  Brown  elected 
as  assignee.  Motion  made  and  supported  that  each  and  every  mem- 
ber, initiated  before  January  1,  that  his  signature  be  received,  and 
signed  over  to  Bro.  Brown,  and  let  him  put  it  through  the  court. 
Carried." 

An  assignment  was  drawn  up  in  pursuance  of  said  action  of  the 
assembly,  and  signed  by  37  members.  These  are  claimed  by  plaintiff 
to  have  been  all  the  members  in  good  standing  at  the  time  of  the 
assignment. 

The  conflicting  claims  in  the  evidence  were  these: 


558  CORPORATE    FEATURES   OF   LABOR   UNIONS  [CHAP.  XI 

1.  The  plaintiff  claimed  that  the  money  paid  in  by  the  persons 
joining  the  preliminary  organization  known  as  the  "Peninsular 
Car- works  Assembly"  was  to  go  into  the  funds  of  the  Local  As- 
sembly No.  8,104  of  the  Knights  of  Labor.  The  defendants,  on  the 
other  hand,  claimed  that  the  dollar  paid  in  by  each  of  the  530  men 
was  contributed  for  the  sole  purpose  of  aiding  the  families  of  these 
men  in  distress,  and  was  not  to  go  into  the  local  assembly.  This 
dispute  was  settled  by  the  jury  in  favor  of  the  plaintiff  by  their 
answers  to  questions  Nos.  1,  3,  and  5,  in  which  answers  they  found 
that  the  money  paid  in  was  intended  bj'"  all  the  persons  paying  it 
in  to  go  into  the  funds,  and  become  the  property,  of  the  Local  As- 
sembly No.  8,104,  which  was  by  all  of  them  intended  to  be  a  distinct 
organization  from,  and  a  successor  to,  the  preliminary  association. 

2.  The  plaintiif  claimed  that  all  the  members  in  good  standing 
of  the  local  assembly  joined  in  the  assignment  to  him,  and  that  that 
was  sufficient;  and  the  defendants  insisted  that  he  must,  in  order 
to  prevail,  have  an  assignment  from  all  the  persons  who  contributed 
to  the  fund,  which  he  did  not  have.  The  jury  found  that  all  the 
members  "interested  in  the  fund  contributed"  did  not  join  in  the 
assignment.  They  did  not  find  specially  how  many  members  there 
were  in  good  standing,  or  whether  or  not  all  the  members  of  Local 
Assembly  No.  8,104  in  good  standing  joined  in  the  assignment.  The 
court  held  in  his  instructions  to  the  jury  that,  under  the  rules  of 
the  Knights  of  Labor,  all  the  money  belonging  to  Local  Assembly 
No.  8,104  was  vested  in  those  who  were  in  good  standing,  and  those 
not  in  good  standing  had  no  rights  in  this  money;  and  he  seemed 
to  take  it  for  granted  that  the  evidence  was  conclusive  that  all  the 
members  in  good  standing,  under  the  constitution  and  laws  of  the 
order,  had  joined  in  the  assignment  to  plaintiff,  and  therefore  only 
submitted  to  the  jury  the  question  of  the  intent  of  the  parties  who 
paid  in  the  money  as  to  where  it  was  to  go,  and  instructed  them  that 
they  must  find  that  every  man  who  paid  in  his  dollar  at  the  prelim- 
inary meeting  paid  it  in  with  the  understanding  as  to  what  the  con- 
stitution and  rules  of  the  Knights  of  Labor  called  for  as  to  the  rights 
of  members  in  the  fund,  and  that  the  money  was  to  go  towards  his 
initiation  into  the  Knights  of  Labor,  and  that  by  paying  this  dollar 
he  subscribed  to  the  constitution  and  by-laws  of  this  association  of 
the  Knights  of  Labor,  — 

"Thus  giving  the  members  of  this  association  the  right  to  divest 
him  of  the  interest  in  the  dollar  he  had  paid,  by  insisting  upon  the 
loss  of  his  right  to  this  dollar  by  failure  to  comply  with  the  by-laws." 

That  they  must  find  all  this  before  they  could  return  a  verdict 
for  the  plaintiff.    If  they  did  so  find,  the  plaintiff  could  recover. 

If  the  circuit  judge  was  correct  in  his  sul)mission  of  the  case  to 
the  jury,  we  fail  to  see  any  such  inconsistency  between  the  general 
verdict  and  the  answer  to  the  second  special  question  as  would  render 


SECT.  II]  OWNERSHIP    OF    PROPERTY  559 

the  general  verdict  nugatory.    Tlie  jury  did  not  mean  by  this  answer 
that  all  the  members  did  not  pay  in  their  dollar  with  the  intent  that 
it  sliould  go  into  the  local  assembly  of  the  Knights  of  Labor,  and  be- 
come the  property  of  said  assembly,  to  be  controlled  by  their  con- 
stitution and  by-laws,  because  in  answer  to  special  (questions  Nos.  1, 
3,  and  5  they  found  specially  to  the  contrary.    Did  they  mean  that 
all  the  members  of  the  local  assembly  in  good  standing  at  the  time 
the  assignment  was  made  did  not  join  in  the  assignment?     It  is 
evident  they  did  not.    The  judge  correctly  took  it  for  granted  from 
the  evidence  that  all  the  members  in  good  standing  did  join,  —  and 
there  was  really  no  testimony  tending  to  show  otherwise,  —  and 
did  not  submit  that  matter  to  them.    If  they  did  mean  this,  it  can 
have  no  effect,  because  there  is  no  evidence  in  the  record  to  support 
the  special  finding,  if  such  is  the  sense  of  it.     What  was  evidently 
meant  by  the  jury  in  this  answer  was  that  all  the  persons  originally 
contributing  to  the  fund,  and  originally  interested  in  it,  did  not 
join  in  the  assignment.    Of  this  there  was  no  dispute;  and  the  judge 
assumed  it  to  be  of  no  consequence,  and  we  think  he  was  right.     In 
the  light  of  the  evidence  in  the  case,  the  contention  of  the  parties 
upon  the  trial,  and  the  instructions  of  the  court,  and  all  Ihe  findings 
of  the  jury,  both  general  and  special,  no  other  construction  than  the 
one  last  above  can  be  put  upon  this  answer  to  the  second  special 
question  submitted. 

The  parties  who  originally  joined  the  Local  Assembly  No.  8,104 
might,  in  a  certain  sense,  be  said  to  be  "interested"  in  the  funds 
belonging  to  the  assembly,  because  it  is  provided  by  the  rules  of  the 
order  that  they  can,  at  any  time,  by  paying  their  arrearages  of  dues, 
resume  their  rights  as  members.  This  would  reinvest  them  with 
the  rights  in  the  funds  of  the  association,  and  in  the  moneys  sought 
to  be  collected  in  this  suit,  but  until  they  paid  their  dues,  and  while 
they  were  in  arrears  and  suspended,  they  had  no  rights  or  legal  in- 
terest in  the  moneys  of  the  assembly.  They  had  perhaps  while 
suspended  a  contingent  interest,  depending  upon  their  regaining 
their  rights,  but  not  such  an  interest  as  made  them  necessary  parties 
to  the  assignment.  The  jury  must  have  had  reference  to  this  con- 
tingent interest  in  their  answer  to  the  second  question. 

But  the  defendants  claim  that  the  judgment  of  the  court  is  right, 
because,  under  all  the  evidence,  the  plaintiff  was  not  entitled  to  re- 
cover, and  the  jury  should  have  been  so  instructed  in  the  first  place. 
This  claim  is  based  upon  the  proposition  that  this  voluntary  unin- 
corporated association,  consisting  of  many  members  contributing 
to  a  fund  for  the  joint  benefit  of  all,  is  a  copartnership,  and  therefore 
the  respective  rights  and  duties  of  the  members,  with  regard  to  their 
common  property,  can  only  be  settled  in  a  court  of  equity;  that  the 
rights  of  the  individual  members  are  entitled  to  as  much  respect  in 
the  courts  as  are  the  rights  of  any  number  of  associates  less  than  the 


560  CORPORATE   FEATURES   OF   LABOR   UNIONS  [CHAP.  XI 

whole;  and  it  would  be  manifestly  improper  for  the  court  to  permit 
37  members,  out  of  any  greater  number,  to  recover  for  themselves 
that  which  belongs  to  all  the  members. 

This  association  was  in  no  sense  a  copartnership.  There  was  no 
business  carried  on  by  it,  and  nothing  involving  loss  or  profit  in  a 
business  sense.  Burt  v.  Lathrop,  52  Mich.  106  (17  N.  W.  Rep.  716). 
It  was  purely  a  benevolent  and  social  organization,  having  also  in 
view  the  protection,  benefit,  and  welfare  of  its  members  in  their 
various  employments.  It  must  now  be  considered  as  well  settled 
that  persons  have  a  rght  to  enter  into  such  associations,  and  to  bind 
themselves  as  to  their  membership  and  rights  in  such  societies,  and 
the  funds  of  the  same,  by  the  constitution  and  by-laws  of  the  asso- 
ciation which  they  adopt,  or  subscribe  to  after  adoption.  Such  an 
organization  may  be  neither  a  partnership  nor  a  corporation.  The 
articles  of  agreement  of  such  an  association,  whether  called  a  "con- 
stitution," "charter,"  "by-laws,"  or  any  other  name,  constitute  a 
contract  between  the  members  which  the  courts  will  enforce,  if  not 
immoral  or  contrary  to  public  policy  or  the  law  of  the  land.  Hyde 
V.  Woods,  94.  U.  S.  523,  2  Sawy.  655;  Bac.  Ben.  Soc,  sees.  37,  91, 
and  sec.  116,  subd.  1;  Austin  Abbott's  note  to  Ebbinghousen  v. 
Worth  Club,  4  Abb.  N.  C.  300,  301;  Nibl.  Mut.  Ben.  Soc,  sees.  92, 
93. 

The  only  persons  having  control  of  these  funds  were  the  members 
in  good  standing  in  the  local  assembly,  by  the  agreement  of  all  the 
members,  as  shown  by  the  constitution  and  by-laws  of  the  Knights 
of  Labor,  which  constitution  and  by-laws  in  this  respect  were  known 
to  all  the  members  when  they  paid  in  their  money,  as  found  by  the 
jury  under  the  charge  of  the  court.  Not  only  did  the  assembly  in 
regular  lodge  meeting  vote  this  assignment  to  plaintiff,  but,  in  pur- 
suance of  that  vote,  all  the  members  of  the  assembly  in  good  stand- 
ing executed  an  assignment  to  plaintiff  of  their  right,  title,  and 
interest  in  this  money  to  plaintiff.  He  was  thereby,  under  the  law 
of  the  order  and  of  the  land,  entitled  to  sue  and  recover  the  money 
in  the  hands  of  the  defendants,  if  it  belonged  to  the  assembly,  as  the 
jury  found  it  did.  The  defendants  divided  this  money  up  between 
themselves  and  Heurion,  relying  upon  difficulties  and  technicalities 
in  the  law  as  they  supposed  it  to  be  to  keep  it.  It  is  not  to  be  re- 
gretted that  they  were  mistaken  in  the  law,  and  therefore  deprived 
of  the  fruits  of  at  least  an  attempted  moral  larceny. 

The  judgment  of  the  court  below  will  be  reversed,  and  judgment 
will  be  entered  in  this  court  for  the  plaintiff  upon  the  general  verdict 
for  the  amount  thereof,  and  with  interest  from  the  date  thereof. 
The  plaintiff  will  recover  costs  of  both  courts. 

The  other  Justices  concurred. 


SECT.  II]  OWNERSHIP   OF   PROPERTY  561 

WALLACE  V.  THE  PEOPLE 
^  Supreme  Court  of  Illinois.     1872 

63  III.  451 

Writ  of  error  to  the  Circuit  Court  of  Perry  county;  the  Hon. 
M.  C.  Crawford,  Judge,  presiding.  .  .  . 

Per  Curiam:  At  the  May  term,  1871,  of  the  Perry  County  Circuit 
Court,  the  plaintiff  in  error  was  indicted  for  the  crime  of  larceny. 
The  indictment  contains  but  a  single  count,  in  which  it  is  charged 
that  the  property  alleged  to  have  been  stolen  was  the  property  of 
the  "American  Merchants'  Union  Express  Co." 

A  motion  was  entered  to  quash  the  indictment,  which  motion  the 
Circuit  Court  overruled.  A  trial  was  subsequently  had,  and  the 
plaintiff  in  error  was  found  guilty,  and  thereupon  he  entered  a  mo- 
tion in  arrest  of  judgment,  which  was  also  overruled. 

The  rulings  of  the  court  on  these  motions  are  now  assigned  for 
error. 

We  are  of  opinion  that  the  ownership  of  the  property  is  defectively 
stated. 

It  is  not  averred  that  the  American  Merchants'  Union  Express  Co. 
is  a  corporation. 

The  rule  seems  to  be  well  settled  that  property,  vested  in  a  body 
of  persons,  ought  not  to  be  laid  as  the  property  of  that  body  unless 
such  body  is  incorporated,  but  should  be  described  as  belonging  to 
the  individuals  composing  the  company.  Wharton's  American 
Crim.  Law,  sec.  1828,  p.  659;  2  Russell  on  Crimes,  p.  100. 

In  this  indictment,  the  property  is  not  described  as  belonging 
to  any  natural  person  or  persons,  nor  to  any  corporate  body,  and  this 
defective  statement  was  the  ground  of  the  motion  in  arrest. 

The  error  was  fatal,  and  the  judgment  must  be  reversed  and  the 
cause  remanded.  Judgment  reversed. 


LAVRETTA  v.  HOLCOMBE 

Supreme  Court  of  Alabama.     1893 

98  Ala.  50,3 

AlPPEal  from  the  City  Court  of  Mobile. 

Tried  before  the  Hon.  O.  J.  Semmes. 

This  was  a  suit  by  John  L.  Lavretta  to  recover  of  Wm.  H.  Hol- 
combe,  the  sheriff  of  Mobile  county,  the  amount  remaining  unpaid 
on  a  venditioni  exponas,  which  was  placed  in  his  hands  for  collection, 
and  which  was  issued  in  an  attachment  suit  brought  by  the  said 
Lavretta  against  one  Moraquez,  his  tenant.  The  complaint  alleged 
that  the  sheriff  had  levied  upon  sufficient  property  to  satisfy  the 


562  CORPORATE    FEATURES   OF   LABOR   UNIONS  [CHAP,  XI 

claim,  and  had  illegally  discharged  from  the  levj^  some  portion  thereof, 
leaving  an  unsatisfied  balance  due  the  plaintiff.  It  was  shown  that 
the  sheriff  had  levied  an  attachment  upon  certain  property  found  in 
the  building  occupied  by  said  Moraquez,  and  which,  under  one 
aspect  of  the  evidence,  belonged  to  him  at  the  time  he  leased  the 
premises  from  Lavretta,  but  which  he  subsequently  sold  to  the  El 
CosmopoUtano  Social  and  Literary  Club.  After  the  sheriff  had 
taken  the  property  under  the  attachment  writ,  but  before  a  sale,  he 
was  notified  that  some  of  the  property  levied  upon  was  claimed  by 
said  club.  He  thereupon  made  demand  upon  the  plaintiff,  Lavretta, 
for  an  indemnifying  bond  as  to  that  part  of  the  property,  and  upon 
Lavretta's  failure  to  give  the  bond,  the  property  claimed  by  the  club 
was  released. 

The  defendant  filed  a  number  of  pleas  all  of  which,  with  varying 
phraseology,  set  up  that  after  he  had  levied  on  the  property  and  was 
about  to  sell  under  the  writ  in  his  hands,  a  portion  of  the  property 
was  claimed  by  affidavit  as  the  property  of  the  Cosmopolitano  Club, 
and  that  he  had  a  reasonable  doubt  whether  said  property  was 
subject  to  said  levy,  and  that  he  had  therefore  demanded  an  in- 
demnifying bond  from  the  plaintiff,  which  was  refused.  To  these 
pleas  the  plaintiff  demurred.  The  demurrers  were  overruled,  and 
this  action  of  the  court  is  the  chief  ground  of  error  assigned  in  this 
court.  .  .  . 

Haralson,  J.^  The  plaintiff,  Lavretta  —  appellant  here  —  sued 
out  an  attachment  against  Moraquez,  returnable  to  the  City  Court 
of  Mobile,  placed  it  in  the  hands  of  the  sheriff,  Holcombe  —  ap- 
pellee here  —  who  levied  it  on  personal  property  supposed  to  belong 
to  the  defendant  in  attachment.  The  suit  was  prosecuted  to  judg- 
ment in  said  court,  for  the  sum  of  $478.24  and  costs;  the  property 
levied  on  was  condemned  to  be  sold  for  the  satisfaction  of  the  judg- 
ment, and  a  writ  venditioni  exponas  issued  and  was  placed  in  the 
hands  of  the  defendant,  as  sheriff,  who  advertised  it  for  sale,  and  on 
the  day  of  the  sale,  and  before  it  came  off,  and  the  property  which 
had  been  levied  on  was  about  to  be  sold  under  that  writ,  one  Gerald, 
as  picsident  of  the  "Cosmopolitano  Club,"  by  his  affidavit,  made 
claim  to  a  part  of  said  property  as  being  the  property  of  said  club 
and  not  of  the  defendant  in  execution;  and  defendant,  having  rea- 
sonable doubt  whether  the  property  he  had  levied  on,  whicli  was 
claimed  by  said  cldb,  belonged  to  tiie  defendant  in  attachment, 
and  was  liable  to  levy  and  sale  under  said  writ,  notified  the  plain- 
tiff of  this  claim  and  of  his  reasonable  doubt  as  to  the  ownership  of 
the  property,  and  icquired  of  him  a  l)ond  of  indemnity,  before  pro- 
ceeding to  sell  that  portion  of  it  which  was  claimed  by  said  club; 
and  plaintiff  refused  to  give  a  bond  of  indemnity,  and  after  ten  days 
from  the  time  he  required  said  bond  —  no  bond  having  been  given  — 

li[^  Only  that  part  of  the  opinion  dealing  with  the  question  of  ownership  by  the 
club  is  given.  —  Ed. 


SECT.  II]  OWNERSHIP    OF    PROPERTY  563 

defendant  released  that  portion  of  it  which  was  so  claimed,  and  sold 
and  accounted  for  the  balance.  .  .  . 

In  the  course  of  the  trial,  an  effort  was  made,  by  the  defendant 
as  is  stated,  to  establish  that  the  Cosmopolitano  Club,  which  claimed 
the  part  of  the  property  levied  on,  was  a  corporation,  and  for  that 
purpose,  offered  in  evidence  the  incorporation  book,  kept  in  the 
office  of  the  judge  of  probate,  and  the  procee^lings  touching  the 
organization  of  said  Club,  as  found  in  said  book,  but  they  were  ruled 
out,  on  the  motion  of  the  plaintiff,  "because  they  did  not  show  a 
corporate  organization  as  required  by  law."  It  could  have  served 
no  indispensable  purpose,  to  show  that  the  Club  was  organized,  for 
an  unchartered  association  of  individuals,  styling  themselves  the 
"Cosmopolitano  Social  and  Literary  Club,"  could  have  owned  the 
property  levied  on,  and  made  claim  to  it,  as  well  as  if  they  had  been 
incorporated.  Having  objected  to  defendant  proving  the  corporate 
existence  of  said  Club,  the  plaintiff  could  not  well  object  to  proof  of 
a  voluntary  association  of  individuals  under  that  name,  and  the 
objection  to  the  question  propounded  to  the  witness,  L.  B.  Gould.  — 
"  Do  you  know  whether  or  not  several  people,  or  a  number  of 
people,  acted  together,  and  claimed  to  be  a  Club  under  the  name  of 
the  '  El  Cosmopolitano  Social  and  Literary  Club,'  "  was  properly 
allowed,  the  other  evidence  tending  to  show  that  this  Club  made 
claim  to  a  part  of  the  property  levied  on,  which  the  sheriff  demanded 
indemnity  to  sell.  For  the  same  reasons,  the  question  propounded 
to  and  answered  by  the  same  witness,  which  constitutes  the  basis 
for  the  5th  assignment  of  error,  was  allowable. 

The  statements  of  said  witness,  that  he  had  been  elected  as 
president  of  the  Club,  as  shown  by  its  minutes  and  that  he  was,  in 
May,  1889,  and  prior  thereto,  acting  as  the  president  of  an  organiza- 
tion or  a  society  of  gentlemen,  designating  themselves,  the  "El 
Cosmopolitano  Social  and  Literary  Club,"  were  very  proper  to  be 
answered.  They  tended  to  show  a  voluntary  organization  under 
that  name,  which  claimed  this  property,  and  that  the  claim  was 
not  simulated  but  real.  The  question  propounded  was,  "if  he  claimed 
to  be  an  officer  of  that  Club?"  The  answer  was,  "that  he  did  not 
claim  to  be  an  officer  thereof,  but  that  he  had  been  elected  as  the 
president  of  the  Club,  as  shown  by  the  minutes."  Whether  the 
minutes  of  the  Club  showed  he  was  elected  or  not,  was  immaterial, 
if  he  acted,  and  the  statement  of  the  witness  was  about  a  collateral 
fact,  which  was  also  a  collective  fact,  to  which  he  was  competent  to 
testify,  as  much  so  as  when  a  witness  testifies  he  executed  a  deed  or 
brought  a  suit.  .  .  . 

We  find  no  error  in  the  record,  and  the  judgment  of  the  City  Court 
is  affirmed. 

Affirmed. 


564  CORPORATE    FEATURES   OF   LABOR   UNIONS  [CHAP.  XI 

■".  LE  BLANC  t.  LEMAIRE 

Supreme  Court  of  Louisiana.     1901 
105  La.  539 

The  opinion  of  the  court  was  delivered  by 

Blanchard,  J.  This  case  presents  the  question  whether  church 
property,  to  wit:  three  lots  of  ground  in  the  town  of  Abbeville, 
Louisiana,  on  one  of  which  lots  is  a  church  building,  on  another  a 
small  building  formerly  used  for  church  services,  and  the  third  in 
use  as  a  place  of  burial  for  the  dead,  all  of  the  aggregate  value  of 
$2,050,  is  subject  to  partition  at  the  instance  of  a  minority,  among 
those  who,  at  this  time,  claim  membership  in  the  church. 

The  church  in  question  is  known  as  the  Pleasant  Green  Baptist 
Church  of  Abbeville.  It  is  an  unincorporated  religious  society,  but 
has  maintained  its  informal  organization  and  its  church  for  many 
years. 

The  rolls  of  the  church  showed  in  1898  a  membership  of  about 
two  hundred  persons. 

In  1897  or  1898  trouble  developed  over  the  pastor.  A  portion  of 
the  membership  desired  to  retain  the  then  incumbent;  another 
portion  opposed  him  and  wanted  a  change. 

The  result  was  great  discord  and  dissension  and  the  formation  of 
rival  and  hostile  factions. 

This  continued  until  finally  the  pastor  seems  to  have  been  forced 
out  —  at  least  he  withdrew,  and,  with  a  portion  of  the  membership 
still  adhering  to  him,  is  conducting  religious  services  in  another 
place  in  the  neighborhood. 

Meanwhile,  the  remaining  portion  of  the  congregation,  constitut- 
ing, it  seems,  the  large  majority,  chose  another  pastor  and  with 
him  are  in  possession  of  the  church  and  other  property  and  claim 
to  be  the  Pleasant  Green  Baptist  Church  of  Abbeville. 

This  majority  portion  of  the  congregation  is,  it  seems,  holding 
regularly  religious  meetings  and  services  in  the  church  and  is  en- 
gaged in  other  work  usual  to  organizations  of  the  kind. 

That  portion  of  the  congregation  which  formed  the  faction  that 
supported  the  former  pastor  instituted  the  present  suit.  They  are 
in  number,  as  we  count  the  names  in  the  petition,  about  fifty  —  or 
about  one-fourth  of  the  total  membership  as  disclosed  by  the  roll 
made  up  in  1898. 

They  sue  the  remaining  members  of  the  congregation  —  that 
portion  (the  majority)  in  possession  of  the  church  and  who  recognize 
the  spiritual  authority  of  the  new  pastor. 

They  (the  plaintiffs)  claim  to  be  members  of  the  Pleasant  Green 
Hai)tist  Church,  and  as  such  to  be  connnon  owners,  with  the  other 
incmbers  of  that  organization,  in  the  church  property.  As  owners 
in  common  they  demand  a  partition  of  the  property. 


SECT.  II]  OWNERSHIP    OF    PROPERTY  565 

Their  prayer  is  that  the  three  church  lots,  with  the  improvements 
thereon,  be  sold  for  cash  for  the  purpose  of  partition,  that  the  debts 
of  the  society  be  first  paid  out  of  the  proceeds,  and  that  "the  residue 
be  distributed  among  all  the  members  of  the  church,  share  and  share 
ahke." 

Those  members  made  parties  defendant  answered,  in  substance, 
that  the  property  sought  to  be  made  the  subject  of  partition  stands 
on  the  record  as  the  property  of  the  Pleasant  Green  Baptist  Church, 
and  that  plaintiffs  have  no  such  interest  therein  as  entitles  them  to 
demand  its  partition. 

Their  position  is  that  the  property  belongs  to  the  church  organiza- 
tion, that  it  was  acquired  and  must  be  maintained  for  church  pur- 
poses, that  its  partition  would  work  its  destruction  for  such  purpose, 
and  that  membership  in  the  church  was  not  intended  to  carry  and 
did  not  carry  with  it  ownership  in  fee  in  any  member  or  minority 
of  members  entitling  him  or  them  to  force  its  partition  as  owner  or 
owners  in  common. 

There  was  judgment  in  the  court  a  qua  rejecting  the  demand  of 
the  plaintiffs  and  they  appeal. 

Ruling.  —  We  find  that  the  lots  in  question  were  acquired  for  this 
church  years  ago  —  one  of  them  as  early  as  1871. 

The  price  paid  for  same  was  small,  less  than  one  hundred  dollars 
for  all  the  lots,  and  was  settled  out  of  the  common  church  funds,  with, 
perhaps,  some  assistance  from  certain  members. 

We  gather  from  the  record  that  the  title  was  taken,  as  to  one  of 
the  lots,  directly  in  the  name  of  the  Pleasant  Green  Baptist  Church 
at  the  time  of  its  acquisition  in  1871.  As  to  the  other  two  lots  the 
title  was  first  taken  in  the  name  of  Woodson  Mitchell,  the  pastor 
at  the  time,  who  acted  for  and  on  behalf  of  the  church  in  making 
the  purchase.  For  about  fourteen  years  the  title  remained  in  his 
name,  when  in  1891  he  made  formal  conveyance  of  the  same  to  "the 
Pleasant  Green  Baptist  Church." 

The  act  recites  that  in  this  purchase  from  Mitchell  the  church  is 
represented  by  its  trustees,  eight  in  number,  who  are  named —  "to 
have  and  to  hold  the  above  described  property  unto  the  said  Pleasant 
Green  Baptist  Church  forever,  from  and  after  the  date  hereof." 

The  Pleasant  Green  Baptist  Church  is  not  an  incorporated  body. 
It  has  no  legal  existence  as  a  corporation.  It  is,  though,  a  religious 
society.    It  has  organization  and  a  church  government. 

Our  law  speaks  of  unauthorized  corporations  and  private  societies 
and  refers  to  them  as  capable  of  acquiring  and  possessing  estates  and 
having  common  interests.     C.  C.  446. 

From  this,  it  would  seem  that  such  a  society  as  the  one  we  are 
dealing  with  possesses  at  least  a  limited  legal  status. 

It  was  organized  for  a  purpose  not  only  not  illegal  but  commend- 
able. To  effectuate  this  purpose  it  has  the  right  to  use  and  enjoy 
the  lots  of  ground  in  question,  to  erect  and  maintain  a  church  thereon. 


566  CORPORATE    FEATURES   OF   LABOR    UNIONS         [CHAP.  XI 

This  use  of  property  is  essential  to  its  organization  and  being  so  it 
would  seem  that  this  church  congregation,  as  such,  may  lawfully 
be  the  beneficiary  or  holder  of  the  lots. 

The  acquisition  of  the  lots  was  by  specific  devise  to  a  particular 
society  for  a  purpose  named  and  we  find  this  purpose  being  now 
executed. 

The  present  membership  in  control  of  the  church,  being  a  large 
majority,  represent  the  succession  of  the  original  congregation  and 
constitute  the  Pleasant  Green  Baptist  Church  of  Abbeville. 

A  minority  of  the  congregation,  under  the  case  as  presented,  have 
no  right  to  break  up  the  church  by  forcing  the  sale  of  its  property 
for  purpose  of  partition  on  the  plea  of  being  owners  in  indivision. 
While  they  may,  perhaps,  have  certain  property  rights  in  the  church 
holdings,  they  are  not  considered  such  owners  in  indivision  as  give 
them  a  standing  in  court  to  provoke,  against  the  will  of  the  majoritj^, 
a  partition  of  that  which,  by  common  understanding,  was  intended 
to  remain  intact  for  the  purpose  of  religious  worship. 

We  regard  this  controversy  as  presenting  merely  the  case  of  a 
small  minority  of  a  church  congregation  seceding  from  the  majority 
(not  on  doctrinal  grounds  or  questions  of  religious  faith  or  worship, 
but  on  differences  of  church  government),  refusing  to  acquiesce  in 
the  will  of  the  majority,  and  taking  steps  to  force  the  sale  of  the 
church  property  —  a  course  likely  to  lead  to  the  breaking  up  of  the 
church  organization  itself. 

The  rule  that  the  will  of  the  majority  must  prevail  applies  as  well 
to  religious  as  to  secular  societies,  so  long  as  the  former  conform  to 
the  faith  and  to  the  forms  of  worship  of  the  church  to  which  they 
pertain.  This  is  so  unless  the  church  government  or  articles  of 
agreement  otherwise  provide. 

Here,  there  being  nothing  to  the  contrary  shown,  the  minority 
of  the  congregation,  who  are  plaintiff's  herein,  when  they  became 
members  of  the  church  bound  themselves  to  be  governed  by  the 
voice  of  the  majority  in  the  matter  of  church  government  and  the 
control  and  administration  of  the  church  property. 

They  cannot  now  be  permitted  to  gainsay  this  and  to  force  the 
sale  of  the  church  edifice  and  other  property  against  the  will  of  the 
majority. 

If  this  minority  of  (say)  one-fourth  of  the  membership  of  the 
Pleasant  Green  Baptist  Church  could  do  this,  one  member  —  a 
minority  of  one  out  of  the  total  membership  of  two  hundred  —  could 
do  it. 

This  would  practically  put  every  unincorporated  church  or  re- 
ligious society  in  the  State,  owning  or  holding  property,  at  the  mercy 
of  any  one  recalcitrant  member. 

It  appears  from  the  evidence  that  the  minority  of  this  cluirch 
congregation  are  not  deprived  by  the  majority  of  any  right  held  in 
common  by  all  the  members. 


SECT.  II]  OWNERSHIP   OF   PROPERTY  567 

The  seceding  members  are  at  liberty  to  return  and  occupy  their 
places  in  the  church  and  enjoy  all  their  rights  of  membership  therein. 

This  congregation  (both  factions  thereof)  should  come  together 
and  legally  incorporate  their  church,  and  when  this  is  done  the 
trustees  should  make  formal  conveyance  of  the  church  property  to 
the  corporation. 

The  church  debts,  including  that  due  the  deposed  pastor,  should 
be  paid  by  the  society  thus  legally  incorporated,  and  the  congrega- 
tion should  endeavor  otherwise  and  in  all  things  to  attain  to  and 
live  in  that  state  of  harmony,  good-will  and  brotherly  love  inculcated 
by  the  precepts  of  the  Divine  Master  whose  disciples  they  profess 
to  be. 

Judgment  affirmed. 

Rehearing  refused. 

Monroe,  J.,  dissents.^ 


McLaughlin  v.  wall 

Supreme  Court  of  Kansas.     1909 
81  Kan.  206 

Per  Curiam:  The  title  and  body  of  the  petition  show  that  the 
action  is  brought  by  an  association  of  individuals  as  an  entity,  the 
character  of  which  is  fully  described,  but  in  their  own  names,  so 
that  capacity  to  sue  appears.  The  petition  does  not  disclose  a  joint 
ownership  or  tenancy  in  common  of  the  property  with  the  defend- 
ants. It  shows  ownership  by  the  association,  of  which  the  defend- 
ants are  no  longer  members.  The  allegations  respecting  ownership 
by  the  associated  plaintiffs  are  plain  enough.  Since  the  facts  are 
stated  it  is  not  necessary  to  name  the  kind  of  ownership  by  calling 
it  either  general  or  special.  If  the  so-called  disjunctive  allegation 
confused  the  matter,  then  the  amendment  ought  to  have  been  al- 
lowed. The  petition  shows  that  the  defendants  withdrew  from  the 
association  but  wrongfully  keep  its  property,  hence  a  formal  allega- 
tion of  demand  is  not  essential.  The  allegations  of  value  in  the 
petition  control  in  this  proceeding.  If,  as  the  petition  alleges,  the 
defendants  are  not  members  of  the  order  they  have  no  standing  to 
invoke  its  laws,  but  if  they  have  there  is  nothing  in  the  laws  pleaded 
to  prevent  the  civil  courts  from  settling  the  title  to  this  property. 

The  demurrer  to  the  petition  was  rightfully  overruled  and  the 
objection  to  the  introduction  of  testimony  was  wrongfully  sustained. 
The  judgment  is  reversed  and  the  cause  is  remanded.^ 

1  Robertson  v.  Walker,  3  Baxt.  (Tenn.)  316,  318;  Thomas  v.  Ellmaker,  1 
Pars.  Eq.Cas.  (Pa.)98,  111. 

2  Alchenburgs  v.  Lodge,  138  111.  App.  204,  209;  Ahlendorf  t'.  Barkons,  20  Ind. 
App.  657,  6.59;  McFaddon  v.  Murphy,  149  Mass.  341,  344;  Hill  v.  Rauhan  Aarre, 
200  Mass.  438;  Schiller  Commandery  No.  1,  U.  F.  M.  ?;.  Jaennichen,  116  Mich, 
129,  130;   Moore  v.  Telephone  Co.,  171  Mich.  388,  399. 


568  CORPORATE    FEATURES    OF   LABOR   UNIONS  [CHAP.  XI 

RUSE  V.  WILLIAMS 
Supreme  Court  of  Arizona.     1913 

14  Ariz.  445 

Franklin,  C.  J.  This  is  an  action  of  assmnpsit  brought  by  the 
plaintiff,  in  two  counts,  against  the  defendants  on  an  alleged  joint 
and  several  liability  for  cash,  goods,  wares,  and  merchandise  fur- 
nished and  advanced  by  plaintiff  and  his  assignor,  one  A.  G.  Kurvess. 
In  the  first  paragraph  of  the  complaint  the  allegation  is  made  that 
the  defendants  and  each  of  them  are  transient  persons  in  a  roving 
band  without  residence,  but  at  present  domiciled  in  Yuma  county. 

A  judgment  on  a  joint  and  several  liability  of  the  defendants  to 
plaintiff  was  entered  for  $1,600,  interest  and  costs.  The  appeal  is 
prosecuted  from  the  judgment  and  from  the  order  overruling  the 
defendants'  motion  for  a  new  trial.  A  consideration  of  appellants' 
assignment  questioning  the  sufficiency  of  the  evidence  to  support 
the  judgment  is  determinative  of  the  case.  .  .  . 

There  was  no  evidence  offered  by  defendants,  but  a  fair  inference 
drawn  from  the  evidence  in  behalf  of  plaintiff  discloses  that  he  and 
his  assignor,  A.  G.  Kurvess,  together  with  the  defendants  and  others 
to  the  number  of  about  twenty-nine  persons,  formed  themselves 
into  a  voluntary  association,  unincorporated,  calling  themselves  as 
thus  associated  a  "Spiritual  Class."  The  term  "association"  is  a 
word  of  vague  meaning  used  to  indicate  a  collection  of  persons  who 
have  joined  together  for  a  certain  object,  and  the  Spiritual  Class 
thus  formed  may  properly  be  included  within  the  meaning  of  the 
terms  as  so  defined. 

The  object  of  the  Spiritual  Class  was  to  aid  in  effectuating  certain 
ideals  in  religious  life,  especially  those  relating  to  the  communistic 
ownership  of  property.  Their  aim  was  to  live  such  a  life  as  Christ 
lived,  and  the  mode  of  life  described  in  the  Acts  of  the  Apostles  was 
the  foundation  stone  upon  which  was  to  be  erected  the  arch  of  a 
high  ideal  in  religious  belief.  Before  joining  the  Spiritual  Class, 
each  person  passed  a  "novitiate,"  as  it  were,  and  before  being  for- 
mally considered  a  member  in  good  standing  was  subjected  to  rather 
a  rigid  examination  as  to  his  fitness.  It  may  be  stated  in  the  words 
of  a  witness:  "We  were  asked  if  we  were  willing  to  give  up  all  for 
the  Lord,  and  were  referred  to  the  fourth  and  fifth  chapters  of  Acts 
to  read;  and,  of  course,  we  said  we  were  willing  to  give  up  all  and 
spend  our  time  for  the  benefit  of  saving  souls  and  for  the  benefit  of 
the  Lord.  .  .  .  We  were  supposed  to  live  as  one  family,  and  when 
one  needed  anything,  whether  they  put  anything  in  the  treasury 
or  not,  they  were  to  have  it."  The  class  was  formed  in  Findlay, 
Ohio,  some  time  about  P'ebruary,  1911,  and  its  membership  con- 
sisted of  persons  who  had  hitherto  been  acquainted  with  each  other 
for  some  time. 


SECT.  II]  OWNERSHIP    OF    PROPERTY  569 

When  the  plaintiff  joined,  he  gave  up  all  his  worldly  possessions 
to  promote  its  objects  and  further  his  religious  belief,  the  under- 
standing being  that  the  class  was  to  live  as  one  family,  and  the  money 
he  then  had  and  the  proceeds  of  his  future  labors  were  to  be  used 
for  the  support  of  the  class,  under  the  Apostolic  doctrine  that  all 
things  were  to  be  held  in  common,  and  all  were  to  subsist  out  of  the 
common  treasury;  also  that  no  stranger,  or  any  person  who  was 
weary  and  heavy  laden,  was  to  be  turned  away  without  food  and 
comfort.  .  .  . 

The  evidence  is  rather  vague  as  to  how  many  of  the  class  had 
worldly  possessions  to  sell,  and  having  sold  placed  the  price  thereof 
in  the  common  fund.  Quit(^  a  number  of  them  did,  and  others  had 
nothing  wherewith  to  replenish.  This,  however,  was  their  faith, 
that  the  poorest  in  goods  were  the  richest  in  spirit.  Thus  equipped 
the  Spiritual  Class  chartered  a  special  car,  traveling  over  the  coun- 
try and  to  California.  Upon  arriving  in  California  they  discarded 
the  car  and  procured  wagons  and  teams,  traveling  thereby  up  and 
down  California  and  thence  to  Yuma.  On  the  way  they  devoted 
their  time  to  preaching  the  Gospel  and  in  the  interpretation  of  the 
Scriptures  according  to  their  understanding,  and  with  such  powers 
to  speak  the  Word  as  they  possessed.  Such  converts  were  made  to 
their  belief  as  were  disposed  to  look  upon  individual  ambitions  and 
the  separate  ownership  of  property  as  a  selfishness  to  be  eradicated 
for  the  better  opportunity  of  knowing  and  serving  God.  Quite  a 
number  were  thus  attracted  and  converted  and,  of  course,  fed  from 
the  common  table,  which  caused  some  isolated  feelings  of  discontent 
among  some  of  the  older  members;  for  it  is  not  shown  that  any  of 
the  new  converts  were  possessed  of  goods  wherewith  to  augment  the 
treasury.  Street  meetings  were  held,  jails  were  visited,  and  the 
hungry  never  turned  away  from  the  common  treasury.  It  is  an  in- 
controvertible truth  in  arithmetic  that  the  result  of  subtracting,  if 
continued,  without  adding,  is  nothing.  However,  these  high  ideals 
of  self-abnegation  and  the  crucifixion  of  such  desires  and  appetites 
as  tend  to  divert  attention  from  God  were  at  times  tinged  with  just 
a  little  corruption  and  bitterness  of  spirit.  It  began  to  be  noticed 
that  as  many  as  thirty  hungry  strangers  sat  in  one  day  at  the  com- 
mon table;  that  some  of  the  members  of  the  class  consumed  more 
of  the  food  and  of  a  better  quality  than  was  considered  their  portion ; 
that  some  were  less  inclined  than  others  to  outstrip  their  brethren 
in  the  severer  and  less  attractive  tasks  of  work  so  necessary  to  re- 
plenish the  commissary.  It  was  noticed  there  was  wanting,  at  times, 
that  esprit  de  corps  with  which  each  should  have  striven,  one  with 
the  other,  to  accomplish  the  most  for  the  common  good,  and  which 
spirit  of  emulation  is,  perhaps,  somewhat  necessary  for  perfect 
accord  among  those  who  practice  the  doctrine  of  communal  life. 
In  fact,  the  plaintiff  is  not  entirely  without  fault;  for  at  times  he 
became  petulant  over  somewhat  trifling  considerations.     Thus  at 


570  CORPORATE    FEATURES   OF   LABOR   UNIONS  [CHAP.  XI 

one  time  he  complains  because  his  wife  desired  a  spool  of  white 
thread,  which  was  not  forthcoming,  and  upon  another  occasion  his 
boy  required  a  pair  of  socks,  which  by  others  of  the  class  were  thought 
unnecessary  for  his  welfare;  and  plaintiff's  wife  could  ill  conceal  a 
feehng  of  disgust  because  everybody  that  came  along  hungry  got 
something  to  eat,  when  her  boy  was  refused  the  socks.  .  .  . 

It  does  not  seem  that  in  any  of  the  cases  before  the  courts  has  a 
society,  whose  religious  tenets  inculcated  connnunistic  features, 
been  regarded  open  to  objection  as  contravening  law  or  any  public 
poKcy.  Waite  v.  Merrill,  4  Me.  (4  Greenl.)  102,  16  Am.  Dec.  238; 
Gass  V.  Wilhite,  2  Dana,  170-,  26  Am.  Dec.  446;  Schwartz  v.  Duss, 
187  U.  S.  10,  47  L.  Ed.  53,  23  Sup.  Ct.  Rep.  4;  Goesele  v.  Bimeler, 
14  How.  590,  14  L.  Ed.  554;  Burt  v.  Oneida  Community,  137  N. 
Y.  346,  19  L.  R.  A.  297,  33  N.  E.  307;  State  v.  Amana  Society,  132 
Iowa,  304,  11  Ann.  Gas.  231,  8  L.  R.  A.,  n.  s.,  909,  109  N.  W.  894. 

In  Schriber  v.  Rapp,  5  Watts  (Pa.),  351,  30  Am.  Dec.  327,  it  was 
said:  "It  may  be  true  that  the  business  and  pursuits  of  the  present 
day  are  incompatible  with  the  customs  of  the  primitive  Christians; 
but  that  is  a  matter  for  the  consideration  of  those  who  propose  to 
live  in  conformity  to  them.  Our  laws  presume  not  to  meddle  with 
spiritualities;  and  religious  societies  are  regarded  by  them  but  with 
an  eye  to  their  temporal  consequences."  .  .  . 

The  record  in  the  cause  shows  that  appellee  revolted  from  the 
Spiritual  Class  at  Yuma  some  time  during  February,  1912,  perhaps 
overlooking  the  admonition  in  the  second  epistle  of  St.  John:  "Who- 
soever revolteth  and  continueth  not  in  the  doctrine  of  Christ  hath 
not  God,  but  he  that  continueth  in  the  doctrine  hath  both  the  Father 
and  the  Son." 

One  remaining  matter  may  be  adverted  to.  The  necessity  for  a 
divine  revelation  is  evident  from  the  universal  desire  for  it.  The 
testimony  shows  that  this  Spiritual  Class  desired  revelations,  and 
believed  such  would  be  brought  by  the  ghosts  of  dead  men  speaking 
through  a  tin  horn  or  trumpet.  The  spirit  at  times  spoke  to  the 
class  through  the  trumpet,  and  this  circumstance  lately  caused  ap- 
pellee to  feel  that,  perhaps,  it  was  of  the  devil,  and  some  fraud  may 
have  been  practiced.  Such  a  matter  may  not  be  determined  by  this 
court.  That  a  revelation  may  come  through  a  trumpet  hath  also 
some  countenance  in  the  Holy  Writings;  for  St.  John,  the  Apostle, 
says:  "In  the  days  of  the  seventh  angel,  when  he  shall  begin  to 
sound  the  trumpet,  the  mystery  of  God  shall  be  finished,  as  he  hath 
declared  by  his  servants  the  prophets."  Many,  perhaps,  will  con- 
ceive the  impossibility  of  a  revelation  being  so  afforded;  but  such 
statement  must  be  interpreted  by  the  reader  according  to  his  own 
judgnunit,  and  then  he  must  determine  for  himself  wh(>ther  that  be 
one  of  the  parts  inspired  l)y  God^  or  merely  emanating  from  the 
unaided  reason  of  the  writer.    We  cannot  pretend  to  determine  it. 


SECT.  II]  OWNERSHIP   OF   PROPERTY  571 

Upon  a  careful  consideration  of  the  whole  record,  we  cannot  con- 
clude that  the  appellee  is  entitled  to  recover. 

The  judgment  of  the  lower  court  must  accordingly  be  reversed, 
with  instructions  to  vacate  the  judgment  and  dismiss  the  action. 
It  is  so  ordered. 

Cunningham  and  Ross,  JJ.,  concur.^ 


MINOR  V.  ST.  JOHN'S  UNION  GRAND  LODCxE  OF  FREE 

AND  ACCEPTED  ANCIENT  YORK  MASONS 

OF  THE  UNITED  STATES  OF  NORTH 

AMERICA,  COLORED,  OF  TEXAS 

Court  of  Civil  Appeals  of  Texas.     1910 
130  S.  W.  893 

Action  by  St.  John's  Union  Grand  Lodge  of  Free  and  Accepted 
Ancient  York  Masons  of  the  United  States  of  North  America,  Col- 
ored, of  Texas,  and  others,  against  Peter  Minor  and  others,  trustees 
of  Gate  City  Masonic  Lodge,  of  Orange,  Tex.  Judgment  for  plain- 
tiffs, and  defendants  appeal.    Affirmed. 

Reese,  J.  This  is  an  ordinary  action  of  trespass  to  try  title, 
instituted  by  the  above-named  Grand  Lodge  (whose  full  title  we 
cannot  undertake  to  repeat  in  this  opinion,  but  will  simply  use  the 
term  "Grand  Lodge"  in  referring  thereto)  and  Joe  Harris,  Clem 
Green,  and  Ben  Wilkes,  who  sue  as  trustees  of  Prince  Edwin  Masonic 
Lodge,  against  the  Gate  City  Masonic  Lodge  and  its  trustees,  Jones 
Robinson,  Will  Banks,  and  D.  D.  Wells,  to  recover  the  title  and 
possession  of  certain  real  estate  in  the  city  of  Orange,  Tex.  The 
contest  is  over  the  ownership  and  right  of  possession  of  the  property, 
which  was  on  April  16,  1898,  conveyed  by  L.  Miller  to  named  parties 
as  trustees  of  Prince  Edwin  Masonic  Lodge  of  Orange,  Tex.,  a  Ma- 
sonic body  subordinate  to  and  under  the  jurisdiction  of  the  Grand 
Lodge  aforesaid,  which  is  claimed  by  defendants  to  have  become 
merged  in  the  aforesaid  Gate  City  Lodge,  another  colored  Masonic 
body  subordinate  to,  and  subject  to  the  jurisdiction  of,  another 
and  rival  colored  Grand  Lodge.  Defendants  pleaded  their  title, 
founded  upon  such  merger,  and  prayed  affirmatively  for  judgment 
removing  the  cloud  of  plaintiffs'  claim,  and  establishing  their  title. 
The  character  of  the  plaintiffs'  and  defendants'  respective  title  will 
fully  appear  from  the  court's  finding  of  fact,  and  need  not  be  further 
stated  here.  The  case  was  tried  without  a  jury,  resulting  in  a  judg- 
ment that  the  plaintiffs,  Joe  Harris,  Clem  Green,  and  Ben  Wilkes, 

1  Gass  V.  Wilhite,  2  Dana  (Ky.),  170,  172,  178;  Waite  v.  Merrill,  4  Greenleaf 
(Me.),  102,  117;  Gaselys  v.  Separatist  Soc,  13  Ohio  St.  144,  154;  Speidell  v. 
Henrici,  120  U.  S.  377.  See  also,  Schwartz  v.  Duss,  187  U.  S.  8,  24;  Goesele  v. 
Bimeler,  14  How.  589. 


572  CORPORATE    FEATURES   OF   LABOR   UNIONS  [CHAP.  XI 

as  trustees  of  Prince  Edwin  Masonic  Lodge,  of  Orange,  Tex.,  re- 
cover the  property,  and  that  the  said  Grand  Lodge,  plaintiff,  take 
nothing,  and  that  defendants  take  nothing  by  their  cross-action. 
From  the  judgment,  the  said  defendants  prosecute  this  appeal. 

The  trial  court  prepared  and  filed  the  following  conclusions  of 
fact.^  .  .  . 

"(2)  I  find  that  prior  to  1898  there  existed  at  Orange,  Tex.,  a 
voluntarj'  association  of  negroes,  which  association  was  known  as 
the  Prince  Edwin  Masonic  Lodge  of  Orange,  Tex.,  and  said  Prince 
Edwin  Lodge,  of  Orange,  Tex.,  will  hereinafter  be  styled  the  Prince 
Edwin  Lodge. 

"  (3)  That  the  Prince  Edwin  Lodge  was  subordinate  to  said  Grand 
Lodge,  and  was  conducted  upon  the  authority  of  a  dispensation, 
called  '  warrant  '  (and  hereinafter  stjded  warrant)  issued  by  said 
Grand  Lodge. 

''  (4)  That  the  Grand  Lodge  had  the  exclusive  power  to  grant 
said  warrant  and  revoke  the  same  at  any  time,  and  that  grievances 
of  the  Prince  Edwin  Lodge  were  appealable  to  the  Grand  Lodge, 
that  the  Prince  Edwin  Lodge  had  local  by-laws  regulating  the  time 
and  amount  of  dues  to  be  paid  to  the  local  lodge,  and  the  time  and 
the  place  of  meeting  of  said  lodge,  and  such  regulations  as  affected 
its  local  government,  but  that  it  only  had  such  power  in  making 
by-laws  as  was  delegated  to  it  by  the  Grand  Lodge,  and  that  the 
right  of  the  Prince  Edwin  Lodge  to  exist  or  to  dissolve  was  not  lodged 
in  its  local 'government,  but  in  the  Grand  Lodge,  to  which  it  owed 
allegiance. 

"(5)  That  the  Prince  Edwin  Lodge  could  not  dissolve,  or  cease 
to  exist,  or  pass  into  another  organization,  by  a  vote  of  its  members, 
except  by  and  with  the  consent  and  approval  of  the  Grand  Lodge.  .  .  . 

"(11)  That  on  the  12th  day  of  May,  1902,  a  meeting  was  held  in 
the  said  lodge  building  and  in  the  lodgeroom  of  the  Prince  Edwin 
Lodge.  .  .  .  That  there  was  present  at  said  meeting  11  members 
of  the  Prince  Edwin  Lodge  and  10  others,  not  members  of  the  Prince 
Edwin  Lodge. 

"(12)  That  at  said  meeting  a  motion  was  made  to  dissolve  the 
Prince  Edwin  Lodge  and  to  create  a  new  lodge,  to  be  known  as  the 
Gate  City  Masonic  Lodge,  of  Orange,  Tex.,  which  last-named  lodge 
will  hercinaftcn-  be  styled  the  Gate  C'ity  Lodge.  .  .  . 

"  (14)  That  at  said  meeting  there  was  present  all  three  of  the 
members  of  the  Prince  Edwin  Lodge  who  were  at  the  time  the  trus- 
tees of  said  Prince  Edwin  Lodge.  That,  when  the  vote  was  taken 
upon  said  motion,  all  of  said  trustees  and  said  secretary  voted  in 
favor  of  same,  and  in  fact  all  of  the  members  of  the  Prince  Edwin 
Lodge  who  were  present  voted  in  favor  of  said  motion  to  dissolve 
the  Prince  Edwin  Lodge  and  crt^ate  tiie  Gate  City  Lodge. 

1  Part  of  the  conclusions  of  fact  arc  omitted.  —  Ed. 


SECT.  II]  OWNERSHIP    OF    PROPERTY  573 

"(15)  That  about  9  or  10  months  afterwards  there  was  a  meet- 
ing held  at  a  private  residence,  at  which  was  present  Clem  Green, 
who  had  for  some  years  been  a  member  of  Prince  Edwin  Lodge,  but 
who  on  said  night  of  May  12,  at  said  meeting,  and  upon  faith  of  the 
representations  made  by  the  said  Abe  Roberts,  voted  to  dissolve 
said  Prince  Edwin  Lodge  and  join  Gate  City  Lodge,  but,  having 
remained  in  said  Gate  City  Lodge  long  enough  to  ascertain  that 
said  representations  were  untrue,  had  refused  to  attend  further 
meetings  of  said  Gate  City  Lodge,  or  to  longer  affiliate  with  its 
members  as  Masons,  and  A.  C.  Freelow,  Joe  Harris,  and  Bob  Martin, 
who  at  the  time  of  said  meeting  on  May  12th  were  suspended  mem- 
bers of  Prince  Edwin  Lodge.  That  at  said  meeting  all  of  those  pres- 
ent expressed  their  loyalty  to  the  Prince  Edwin  Lodge,  and  it  was 
decided  to  communicate  with  the  master  of  the  Grand  Lodge  and 
have  him  assist  them  in  the  difficulties  of  the  Prince  Edwin  Lodge. 

"  (16)  That  in  response  to  a  letter  written  after  said  meeting,  and 
as  a  result  of  same,  the  master  of  the  Grand  Lodge,  E.  W.  Atkinson, 
came  to  Orange,  and  held  a  meeting,  at  which  were  present  the  same 
parties  named  in  the  fifteenth  finding  above. 

"(17)  That  shortly  after  the  organization  of  the  Gate  City  Lodge 
some  of  its  members  became  dissatisfied,  and  in  March,  1903,  wrote 
to  the  Grand  Master  of  the  Grand  Lodge,  to  which  Prince  Edwin 
Lodge  was  a  subordinate,  telling  of  their  troubles.  That  in  response 
to  said  letter  Grand  Master  Atkinson  visited  Orange,  and  found  a 
few  members  of  the  Prince  Edwin  Lodge  without  a  warrant  or  place 
to  meet,  and  that  the  Gate  City  Lodge  had  taken  all  the  property 
of  the  Prince  Edwin  Lodge  of  every  kind  and  refused  to  give  it  up. 
That  said  Grand  Master  recognized  the  Prince  Edwin  Lodge  and 
issued  it  a  permit  to  work  in  lieu  of  its  warrant  usurped  by  the  Gate 
City  Lodge.  That  Prince  Edwin  Lodge  is  an  existing  lodge,  and 
has  been  so  recognized  by  the  said  Grand  Lodge  ever  since  its  or- 
ganization. 

"(18)  That  the  Prince  Edwin  Lodge  did  not  hold  any  meeting 
from  the  said  12th  day  of  May  until  they  received  the  substitute  or 
provisional  warrant  mentioned  in  the  foregoing  finding,  which  was 
about  10  months,  after  which  time  they  proceeded  under  the  same 
name  using  the  same  seal  and  in  all  things  proceeding  in  the  same 
manner  as  Prince  Edwin  Lodge  had  always  proceeded,  and  electing 
a  regular  succession  of  trustees;  the  said  Joe  Harris,  Clem  Green, 
and  Ben  Wilkes  being  at  present  the  regularly  elected  and  qualified 
trustees  of  the  Prince  Edwin  Lodge. 

"(19)  That,  some  months  after  said  May  12th,  Ben  Wilkes,  Ed. 
Hill,  and  Edmund  Love,  all  of  whom  had  voted  at  said  meeting 
hereon  May  12th  in  favor  of  the  dissolution  of  the  Prince  Edwin 
Lodge  and  the  creation  of  the  Gate  City  Lodge,  abandoned  said 
Gate  City  Lodge  and  refused  to  any  longer  participate  in  the  same 
or  affiliate  with  its  members,  came  back  to  the  Prince  Edwin  Lodge, 


574  CORPORATE    FEATURES   OF   LABOR   UNIONS  [CHAP.  XI 

and  have  since  been  loyal  members  thereof,  of  the  latter  lodge,  in 
which  they  were  members  in  good  standing  on  May  12,  1902. 

"(20)  That  the  said  Edmund  Love,  Ben  Wilkes,  Ed.  Hill,  and 
Clem  Green,  who  were  never  shown  by  the  records  of  the  Grand 
Lodge  to  have  been  expelled  or  suspended,  but  upon  their  offering 
to  return  to  said  Prince  Edwin  Lodge,  the  master  of  said  Grand 
Lodge,  being  informed  of  their  rebellion,  forgave  them,  and  they  have 
since  been  regular  and  loyal  members  of  same  Prince  Edwin  Lodge, 
except  the  said  Ed.  Hill,  who  was  a  regular  and  loyal  member  of 
the  same  until  his  death  some  time  ago. 

''  (21)  That  the  action  taken  at  said  meeting  on  said  night  of 
May  12,  1902,  was  done  without  the  knowledge  or  consent  of  the 
Grand  Lodge. 

"  (22)  That  the  Prince  Edwin  Lodge  has  never  met  in  said  lodge 
building  since  the  12th  day  of  May,  1902. 

"  (23)  That  there  are  at  present  only  four  active  members  of  the 
Prince  Edwin  Lodge,  to  wit,  Clem  Green,  Joe  Harris,  Ben  Wilkes, 
and  Edmund  Love.  That  in  accordance  with  the  rules  of  the  Grand 
Lodge  of  the  order  an  active  lodge  may  be  maintained  by  three 
members,  and  a  quorum  for  the  transaction  of  business  in  said  order 
is  complete  when  three  members  are  present. 

"  (24)  That  the  Gate  City  Lodge,  from  the  time  of  its  organization 
on  said  May  12,  1902,  has  recognized  and  paid  dues  to  and  received 
visitations  from  a  certain  Grand  Lodge  which  has  no  connection  with 
the  Grand  Lodge  under  which  the  Prince  Edwin  Lodge  acted  or  is 
acting.  The  Gate  City  Lodge  recognizes  its  Grand  Lodge  as  the 
superior  body  in  the  same  way  that  the  Prince  Edwin  Lodge  recog- 
nizes its  grand  body  as  its  superior;  but  that,  although  both  bodies 
claim  to  be  Masons,  they  do  not  affiliate  or  recognize  one  another 
as  Masons,  and  are  distinct  and  separate  orders,  and  the  purposes 
of  their  organization  and  existence  are  not  shown  to  be  the  same. 

"(25)  That  since  the  said  night  of  May  12,  1902,  the  Gate  City 
Lodge  has  retained  the  possession  of  the  said  lodge  building,  and 
continued  in  regular  existence,  and  has  elected  a  regular  succession 
of  trustees,  who  claim  to  be  the  regular  successors  of  the  trustees 
to  whom  the  land  in  controversy  was  deeded.  .  .  . 

"  (27)  That  the  records  of  the  Grand  Lodge  do  not  show  the  Prince 
Edwin  Lodge  was  ever  dissolved,  suspended,  or  in  any  way  ceased 
to  exist.  That  the  Prince  Edwin  Lodge  has  had  a  regular  delegate 
or  representative  at  each  meeting  of  the  Grand  Lodge  since  the  year 
1898,  and  had  received  all  visitations  of  the  Grand  Lodge  since  said 
time,  and  is  and  has  ever  been  in  good  standing  with  the  said  Grand 
Lodge.  .  .  . 

"(31)  That  by  the  laws  of  the  Grand  Lodge,  when  a  subordinate 
lodge  ceased  to  exist,  its  property  b(^came  the  property  of  the  Grand 
Lodge. 

"(32)  That  the  Prince  Edwin  and  Gate  City  Lodges  are  each 


SECT.  II]  OWNERSHIP   OF   PROPERTY  575 

bound  by  the  rules  and  regulations  of  the  Grand  Lodges  with  which 
they  are  affiliated."  .  .  . 

The  first  and  second  assignments  of  error  attack  the  judgment 
of  the  court  adjudging  the  property  to  appellees.  Appellants'  con- 
tention, presented  by  these  assignments,  is  that  the  present  trustees 
of  the  Gate  City  Lodge  are  the  legal  successors  of  the  trustees  of 
Prince  Edwin  Lodge  to  whom  the  property  was  conveyed.  The 
court's  conclusion  of  law,  upon  which  the  judgment  is  based,  is  that 
the  present  trustees  of  Prince  Edwin  Lodge  are  such  successors,  and 
are  entitled  to  the  property  for  the  use  and  benefit  of  Prince  Edwin 
Lodge,  the  original  cestui  que  trust. 

It  follows  from  the  court's  findings  of  fact  that  Prince  Edwin 
Lodge  is  not  an  independent  organization,  existing  solely  for  the 
benefit  of  its  members,  but  that  it  is  a  part  and  parcel  of  a  larger 
organization,  known  as  the  Grand  Lodge,  organized  for  specific  pur- 
poses, which  purposes  are  to  be  accomplished  by  and  through  such 
subordinate  bodies  as  the  local  lodge  in  this  case.  The  local  lodge 
came  into  being  by  virtue  of  the  power  conferred  upon  its  members 
to  organize  themselves  into  a  subordinate  lodge.  The  conveyance 
of  Miller  to  the  trustees  named  in  the  deed  placed  the  legal  title  in 
them  and  their  successors  for  the  benefit,  not  of  the  individual  mem- 
bers then  composing  Prince  Edwin  Lodge,  but  for  the  benefit  of  the 
lodge  itself  as  an  existing  entity,  the  membership  of  which  was  liable 
to  continual  change.  When  a  member  ceased  to  become  such,  his 
interest  in  this  property  also  ceased,  and  this  makes  a  radical  dif- 
ference between  the  rights  of  the  members,  as  individuals,  and  the 
members  of  a  joint-stock  association  organized  for  purely  business 
purposes,  as  in  the  case  of  Allen  v.  Long,  80  Tex.  264,  16  S.  W.  43, 
26  Am.  St.  Rep.  735,  to  which  the  present  case  bears  no  sort  of  anal- 
ogy. This  was  not  a  business  enterprise  at  all,  but  an  organization, 
as  its  name  indicates,  for  purely  benevolent  and  fraternal  purposes. 
When  the  property  was  conveyed  to  the  trustees  of  Prince  Edwin 
Lodge,  it  was  for  the  use  and  benefit  of  this  body  in  carrying  out 
the  purposes  of  its  organization  under  the  jurisdiction  and  authority 
of  the  Grand  Lodge  from  which  it  received  the  warrant  for  its  exist- 
ence. It  was  in  the  power  of  the  members  of  this  lodge  to  destroy 
the  old  organization  and  form  a  new  one  entirely  foreign  to  the 
original  lodge,  and  thereby  pass  the  title  of  this  property  to  this 
new  organization.  A  majority  of  them,  no  matter  how  large,  could 
just  as  well  have  dissolved  Prince  Edwin  Lodge  and  formed  them- 
selves into  a  business  association  of  any  kind,  thus  devoting  the  prop- 
erty to  purely  business  purposes.  The  action  of  the  members  in 
forming  Gate  City  Lodge  was  not  simply  to  change  the  name  of 
Prince  Edwin  Lodge;  but  its  necessary  result,  if  carried  out,  was  to 
destroy  the  old  lodge,  and,  without  any  authority  from  the  original 
parent  body,  to  create  a  new  one.  The  court  finds  that  Prince  Edwin 
Lodge  has  never  ceased  to  exist,  that  enough  members  thereof  to 


576  CORPOEATE    FEATURES   OF   LABOR   UNIONS  [CHAP.  XI 

constitute  a  lodge  under  the  laws  of  the  governing  body  have  al- 
ways remained,  and  still  remain,  preserving  their  allegiance  to  the 
Grand  Lodge,  and  through  it  the  life  of  the  subordinate  lodge,  and 
that  appellees  are  the  true  and  lawful  successors,  under  the  laws  of 
the  order,  of  the  original  trustees  of  Prince  Edwin  Lodge  to  whom 
the  property  was  conveyed.  This  being  true,  they  are  entitled  to 
hold  the  property  for  the  use  of  this  lodge.  The  case  of  Brown  v. 
Clark,  102  Tex.  323,  116  S.  W.  360,  24  L.  R.  A.  (n.  s.)  670,  is,  we 
think,  in  point.  Watson  v.  Jones,  13  Wall.  679-734,  20  L.  Ed.  666; 
McKinney  v.  Griggs,  5  Bush  (Ky.),  401,  96  Am.  Dec.  360;  Harper 
V.  Straws,  14  B.  Mon.  (Ky.)  48;  Godfrey  v.  Walker,  42  Ga.  562. 

This  disposes  of  the  first,  second,  and  third  assignment  of  error, 
which  are  overruled.  .  .  . 

The  essential  facts  showing  the  character  and  purpose  of  the 
original  Prince  Edwin  Lodge,  and  its  continued  existence,  and  that 
the  Gate  City  Lodge  is,  as  to  the  original  organization,  an  entirely 
foreign  body,  still  remain.  .  .  . 

We  are  of  the  opinion  that  the  trial  court  arrived  at  a  correct 
conclusion  as  to  the  rights  of  the  parties  in  the  property  in  contro- 
vers3\  Appellants  are  mistaken  as  to  their  right  to  sever  their  rela- 
tions with  their  Grand  Lodge  and  take  their  lodge  as  an  organized 
body  with  them  into  this  foreign  jurisdiction. 

We  find  no  error  in  the  record,  and  the  judgment  is  affirmed. 

Affirmed.^ 


SHIPWRIGHTS,  JOINERS  &  CALKERS  ASSOCIATION 
V.  MITCHELL 

Supreme  Court  of  Washington.     1910 

60  Wash.  529 

RuDKiN,  C.  J.  The  Shipwrights,  Joiners  &  Calkers  Association 
was  organized  in  the  city  of  Seattle  about  25  years  ago.  The  asso- 
ciation is  unincorporated,  and  is  composed  of  numerous  craftsmen 
voluntarily  banded  together  for  their  mutual  benefit  and  protection, 
and  to  provide  health  and  death  benefits  for  members.  It  is  sup- 
ported wholly  by  dues  collected  from  members,  which  have  varied 
from  25  cents  to  70  cents  per  month,  per  capita,  for  several  years 
last  past.  At  various  times  since  its  organization,  the  association 
has  affiliated  with  different  labor  organizations,  such  as  the  Ameri- 
can Federation  of  Labor,  the  ('cntral  Labor  Council  of  Seattle, 
The  International  Union  of  Shipwrights,  Calkers  &  Joiners,  and  the 
Pacific  ('oast  Maritime  Builders  Federation.  From  1902  until  late 
in  1906,  the  association  was  affiliated  with  the  International  Union 

'  See  iilso,  Grand  Lodge  of  Int.  Assn.  of  Miichinists  v.  Rclm,  116  Atl.  (Conn.) 
235;  Manning  r.  Sliocmaker,  7  Pa.  Super.  Ct.  375;  Horton  v.  Chester  Baptist 
Church,  .34  Vt.  309. 


SECT.  Ill]  LIABILITY   IN   RESPECT   TO   ASSETS  577 

of  Shipwrights,  Calkers  &  Joiners,  as  Local  No.  11,  and  from  the 
latter  date  until  the  present  controversy  arose,  with  the  Pacific 
Coast  Maritime  Builders  P^cdcration,  as  Local  No.  2.  While  the 
membership  in  the  association  is  continually  changing  by  deaths, 
withdrawals,  and  removals,  and  while  its  affiliations  with  other 
organizations  have  changed  from  time  to  time,  the  association  itself 
remains,  and  has  at  all  times  maintained  its  entity  and  separate 
existence. 

On  the  21st  day  of  August,  1907,  the  association  had,  in  the  Na- 
tional Bank  of  Commerce  in  Seattle,  the  sum  of  $1,138.51,  deposited 
in  the  name  of  the  Shipwrights,  Joiners  &  Calkers  Association,  L. 
No.  2.  On  the  latter  date,  the  defendants,  who  were  or  had  been 
president  and  treasurer  respectively  of  the  association,  withdrew 
these  funds  from  the  bank  and  turned  them  over  to  three  persons, 
claiming  to  be  trustees  of  the  Shipwrights,  Joiners  &  Calkers  Asso- 
ciation, Local  No.  11.  The  present  action  was  instituted  by  the 
association,  and  by  a  large  number  of  its  members  in  its  behalf, 
to  recover  the  above  sum  for  the  benefit  of  the  association.  The 
case  was  tried  before  the  court  without  a  jury,  and  from  a  judgment 
in  favor  of  the  plaintiffs,  the  defendants  have  appealed. 

The  case  presents  questions  of  fact  only.  The  fundamental  error 
underlying  the  defense  grows  out  of  the  erroneous  assumption  that 
the  respondent  association  changed  and  became  a  different  and 
separate  entity  every  time  it  changed  its  affiliations  with  other  labor 
unions  or  organizations.  This  assumption  has  no  foundation  in  law 
or  in  fact.  Regardless  of  the  changes  in  membership  and  the  changes 
in  its  affiliations,  the  association  itself  has  remained  the  same,  and 
the  appellants  were  guilty  of  a  gross  breach  of  trust  when  they  took 
it  upon  themselves  to  pay  over  its  funds  to  a  rival  organization  without 
warrant  or  authority. 

The  judgment  of  the  court  below  is  therefore  affirmed. 

Chadwick,  Morris,  Crow,  and  Dunbar,  JJ.,  concur. 


Section  3.     Liability  in  respect  to  Association  Assets^ 

MOORE  V.  STEMMONS 

Kansas  City  Court  of  Appeals.     1906 

119  Mo.  App.  162 

Broaddus,  p.  J.  This  is  an  appeal  from  the  action  of  the  court 
in  overruling  a  motion  to  quash  an  execution. 

Appellants  are  trustees  of  the  Methodist  Episcopal  Church  (col- 
ored) of  Carthage,  Missouri.     Respondent  in  an  action  at  law  re- 

1  In  addition  to  the  cases  under  this  section,  see  the  cases  and  excerpts  in 
Chapter  IV,  Section  6,  pp.237  et  seq.,  supra. 


578  CORPORATE    FEATURES   OF   LABOR   UNIONS         [CHAP.  XI 

covered  judgment  against  the  appellants  on  a  promissory  note 
executed  by  their  predecessors  in  office.  It  is  alleged  in  the  petition 
that  the  said  church  was  an  association  for  religious  purposes  and 
that  the  property  of  the  association  was  vested  in,  held  and  con- 
trolled by  a  board  of  trustees,  and  that  its  business  and  financial 
affairs  were  transacted  by  said  board  of  trustees,  and  the  promis- 
sory note  in  suit  was  executed  by  the  members  of  the  board  of  trustees 
on  behalf  of  the  church  in  consideration  of  a  debt  due  by  the  associa- 
tion to  the  respondent,  and  by  virtue  of  their  authority  as  such 
trustees,  and  that  appellants  herein  were  the  successors  of  the  trustees 
who  executed  the  note. 

Judgment  was  rendered  against  the  appellants  in  their  represen- 
tative capacity  as  such  trustees,  and  it  contained  a  direction  for 
satisfaction  out  of  the  propert}^  of  the  association.  Upon  this  judg- 
ment respondent  caused  an  execution  to  be  issued  against  appellants, 
in  their  representative  capacity  as  trustees  of  the  church  only,  to 
be  satisfied  out  of  the  property  of  the  Methodist  Episcopal  Church 
(colored)  of  Carthage,  Missouri.  The  return  of  the  officer  upon  the 
execution  shows  that  it  was  levied  upon  all  the  right,  title,  interest 
and  claim  of  title  of  John  Stemmons,  Geo.  Patterson,  and  Henry 
Tidwell,  trustees  of  said  church  in  Carthage,  Missouri,,  in  their  re- 
presentative capacity  as  trustees  of  said  church  only,  of,  in  and  to 
certain  described  real  estate  (describing  it). 

The  title  of  a  part  of  the  property  seized  was  conveyed  to  the 
predecessors  of  appellants,  "as  Trustees  of  the  Wesley  Chapel,  M. 
E.  Church  of  Carthage,  Missouri,"  as  follows:  "In  trust  that  said 
premises  shall  be  used.,  kept  and  maintained  and  disposed  of  as  a 
place  of  divine  worship  for  the  use  of  the  ministry  and  membership 
of  the  Methodist  Episcopal  Church  in  the  United  States  of  America." 
The  title  to  the  remainder  was  conveyed  to  the  trustees  of  the  "Meth- 
odist Episcopal  Church,"  Carthage,  Jasper  count}^  Missouri,  in 
trust  for  the  same  purpose  as  that  of  the  other  part  described. 

The  motion  to  quash  the  execution  was  based  upon  the  following 
grounds : 

1st.  Because  the  judgment  upon  which  the  same  was  issued  is 
void. 

2d.  Because  the  interest  of  the  defendants  in  the  property  described 
is  not  subject  to  levy  and  sale  under  execution  issued  against  the 
trustees  in  their  representative  capacity. 

3rd.  Because  the  title  to  the  property  is  held  by  the  trustees  for 
the  use  and  benefit  of  the  Methodist  Episcopal  Church  of  the  United 
States  of  America,  and  not  for  the  use  and  benefit  of  the  Methodist 
Episcopal  Church  (colored)  of  Carthage,  Missouri. 

The  appellants  contend,  and  justly,  that  the  motion  should  have 
been  sustained.  It  seems  from  the  statement  of  counsel  for  respond- 
ent that  the  court  relied  for  its  action  in  overruling  the  motion  on 
the  law  as  decided  in  Bushong  v.  Taylor,  82  Mo.  660,  and  cases  there 


SECT.  Ill]  LIABILITY    IN    RESPECT    TO    ASSETS  579 

cited.  And  respondent's  counsel  depends  solely  upon  said  decision 
for  an  affirmance  of  the  judgment. 

That  was  a  case,  however,  in  equity  and  no  one  disputes  but  what 
the  decision  is  supported  by  the  authorities.  The  proceeding  was 
in  rem  to  subject  the  res  to  the  payment  of  a  debt  contracted  for 
the  use  and  benefit  of  the  Methodist  Episcopal  Church.  The  local 
church  in  that  case,  as  in  this,  was  unincorporated.  It  was  held  that, 
it  being  a  voluntary  association,  "the  trustees,  from  the  nature  of 
the  government  of  the  Methodist  Episcopal  Church  were  the  agents 
of  the  aggregate  body  of  the  members,  and  of  each  member  to  the 
extent  of  his  beneficial  interest  in  the  church  property,  in  respect  to 
the  debts  contracted  by  the  trustees  for  the  benefit  of  the  church 
premises."  And  the  court  said  further  that,  "The  trustees  are  the 
only  necessary  parties  defendant  in  a  suit  in  equity,  to  enforce  the 
debt  against  the  church  property." 

Judge  Biggs  of  the  St.  Louis  Court  of  Appeals  in  Lumber  Co.  v. 
Oliver,  65  Mo.  App.  435,  held,  "that  when  property  belongs  to  an 
unincorporated  association,  the  title  of  such  association  or  its  mem- 
bers in  the  aggregate  will  not  be  bound  by  making  the  trustees  of 
the  association  parties  defendant  to  a  proceeding  for  the  enforce- 
ment of  a  mechanic's  lien."  After  stating  the  rule  in  equity  adopted 
in  Bushong  v.  Taylor,  supra,  that,  "when  the  cestuis  que  trustent  are 
numerous  and  it  would  be  oppressive  or  inconvenient  to  compel  the 
plaintiff  to  make  them  all  parties,  one  or  more  may  be  sued  as  rep- 
resenting the  aggregate  body,"  added,  "But  it  is  believed  that 
no  case  can  be  found  which  authorizes  this  practice  in  actions  at 
law,  except  where  there  is  a  statute  authorizing  it  to  be  done."  We 
concur  fully  in  what  the  learned  judge  said.  "An  execution  upon  a 
judgment  or  decree  against  a  trustee  cannot  be  made  to  run  against 
trust  property.  That  can  only  be  reached,  in  the  absence  of  statute, 
by  a  proceeding  in  chancery  to  which  the  cestuis  que  trustent  are  made 
parties.    [22  Ency.  of  Pleading  and  Practice,  p.  19,7.] 

We  agree  with  appellants  that  the  judgment  itself  is  a  nullity 
for  want  of  jurisdiction.  What  has  been  said  dispenses  with  the 
necessity  of  passing  upon  appellants'  third  contention.  The  cause 
is  reversed  with  directions  to  set  aside  the  judgment  overruling  the 
motion  to  quash  the  execution  and  to  enter  a  judgment  sustaining 
the  same.     All  concur. 


VAN  HOUTEN  v.  PINE 
Court  of  Chancery  of  New  Jersey.     1882 
36  N.  J.  Eq.  133 
The  Chancellor. 

The  complainant,  widow  of  James  H.  Van  Houten,  deceased, 
brings  suit  against  an  unincorporated  society  named  The  Masonic 
Mutual  Life  Insurance  Co.,  of  which  her  husband  was,  at  one  time. 


580  CORPOBATE   FEATURES   OF   LABOR   UNIONS  [CHAP.  XI 

a  member.    The  company  is  a  voluntary  association  located  in  this 
state,  and  its  object  is,  as  its  name  imports,  mutual  life  insurance. 
Its  members  are  freemasons,  of  the  degree  of  master  mason.     The 
maximum  number  of  members  is  one  thousand  two  hundred.     On 
the  death  of  a  member,  each  surviving  member  is  required  to  pay 
into  the  treasury,  on  ten  days'  notice,  $1.    The  by-laws  provide  for 
a  second  notice,  if  payment  be  not  made  on  the  first,  in  which  case 
the  delinquent  is  required  to  pay,  instead  of  $1,  $1.10;   and  in  case 
of  non-payment  in  ten  days  after  the  second  notice,  his  name  is  to 
be  erased  from  the  roll  of  members,  and  he  is  to  forfeit  all  claims  on 
the  company;   but  the  board  of  directors  may  reinstate  him,  if  he  is 
apparently  in  good  health,  on  his  giving  a  satisfactory  excuse  for 
his  default  and  paying  all  assessments  up  to  the  date  of  reinstate- 
ment.    The  treasurer  is,  within  thirty  daj^s  after  notice  of  the  de- 
cease of  a  member,  to  pay  to  the  widow  or  familj^  of  the  decedent, 
or  to  the  person  to  whom  the  decedent  may  have  directed  payment 
to  be  made,  SIOOO.    According  to  the  bill.  Van  Houten  was  a  mem- 
ber of  the  company.    Shortly  before  his  death  he  received  notice  to 
pay  an  assessment,  and  six  days  from  the  time  when  he  received 
the  notice  (he  being  then  confined  to  his  house  by  illness),  he  offered 
to  pay  the  assessment  to  one  of  the  directors,  who  then  called  on 
him  on  a  visit  of  sympathy,  but  the  director  declined  to  receive  it; 
at  the  same  time,  however,  he  told  him  to  give  himself  no  trouble 
about  the  matter,  and  assured  him  that  he  would  pay  the  assessment 
for  him  immediately.     The  director  did  not  tender  the  money  for 
him  until  one  day  after  the  expiration  of  the  ten  days,  when  the 
treasurer  refused  to  receive  it.     Subsequently,  when  Van  Houten 
learned  (which  was  within  two  days  from  the  refusal)  that  the  tender 
had  been  made  out  of  time,  and  that  the  treasurer  had  refused  to 
receive  the  money,  he  gave  the  amount  to  the  same  director,  and 
requested  him  to  tender  it  again,  which  he  did,  with  like  result. 
Van    Houten    afterwards    applied   for   reinstatement,    but   without 
success.     The  bill  alleges  that  he  never  received  but  one  notice, 
while,  by  the  by-laws,  he  was  entitled  to  two,  and,  by  custom,  to 
a  third.    It  claims  that  the  offer  of  the  money  to  the  director  was  a 
compliance  with  the  requisition  of    the  by-law,  and  that  if    Van 
Houten's  name  was  stricken  from  the  roll  of  members,  it  was,  under 
the  circumstances,  done  unjustly.    The  bill  is  filed  against  William 
E.  Pine,  president,  and  Charles  H.  Ingalls,  secretary  and  treasurer, 
of  the  company,   and  "twelve  hundred  other  copartners,   as  The 
Masonic  Mutual  Life  Insurance  Company."    It  prays  a  decree  that 
they  pay  the  $1000  to  the  complainant,  with  interest  and  costs; 
that  all  proceedings  taken  by  the  company  to  annul  the  contract 
between  Van  Houten  and  them  may  be  declared  void,  and  also  all 
the  proceedings  on  the  refusal  to  reinstate;   that  at  iiis  deatli  he  was 
entitled  to  all  the  benefits  of  full  membership,  and  that  the  com- 
plainant is  entitled  to  receive,  up  to  the  sum  of  $1000,  the  assess- 


SECT.  Ill]  LIABILITY    IN    RESPECT    TO    ASSETS  581 

merits  payable  by  the  surviving  members  on  the  death  of  a  member, 
and  that  if  the  company  has  not  sufficient  funds  to  pay  the  com- 
plainant's claim,  with  interest  and  costs,  the  proper  officers  may  be 
ordered  to  raise  the  money  by  an  assessment  on  the  surviving  mem- 
bers. There  is  also  the  prayer  for  general  relief.  The  defendants, 
Messrs.  Pine  and  Ingalls,  demur.  The  demurrer  assigns,  for  causes, 
want  of  equity  and  want  of  parties.  On  the  argument,  objection 
was  also  made  to  the  bill  for  impertinence. 

The  Masonic  Mutual  Life  Insurance  Co.  is  not  a  corporation; 
it  is  a  voluntary,  friendly  life  insurance  society.  Equity  takes  cog- 
nizance of  the  affairs  of  such  associations  and  grants  relief  by  treat- 
ing them  as  partnerships,  or  by  looking  into  the  scheme  and  compelling 
conformity  to  it,  or  reforming  it  and  enforcing  it;  or  if  the  plan  is 
deemed  impracticable,  decreeing  a  dissolution  and  distributing  the 
funds;  and  speaking  generally^  it  redresses,  as  far  as  it  can,  the  griev- 
ances of  the  members  of  these  societies  who  complain  to  it  of  injustice 
affecting  their  pecuniary  interests  therein.  Pearce  v.  Piper,  17  Ves. 
1;  Buckley  v.  Cater,  17  Ves.  15;  Beaumont  v.  Meredith,  3  Ves.  & 
B.  180;  Wordsworth  on  Joint  Stock  Companies,  186,  187.  In  the 
case  in  hand  (though  it  is  not  stated  in  the  bill  to  be  so)  the  company, 
as  appears  by  the  copy  of  the  by-laws  put  in  on  their  part  on  the 
argument,  has  a  very  large  accumulated  surplus  fund,  amounting  to 
over  $20,000.  Apart  from  that  admission,  and  looking  at  the  state- 
ments of  the  bill  alone,  it  does  not  appear  that  the  company  has  not 
a  fund  out  of  which  the  complainant  may  be  paid.  It  is,  therefore, 
unnecessary  now  to  consider  whether  the  court  would,  if  there  were 
no  other  means,  order  payment  through  an  assessment  on  the  mem- 
bers. It  is  enough  to  say  that  it  is  not  an  absolute,  certain  and  clear 
proposition  that  the  bill  would  be  dismissed  for  want  of  merits  on 
the  hearing.  The  objection  on  the  ground  of  want  of  equity  cannot 
be  sustained,  therefore. 

As  to  want  of  parties:  Only  two  of  the  members  (one  of  them  is 
the  president,  and  the  other  the  secretary  and  treasurer)  are  made 
parties  to  the  bill.  To  require  the  complainant  to  make  all  the 
other  members  parties,  would  practically  be  so  obstructive  as  sub- 
stantially to  put  an  end  to  the  suit.  But  the  practice  of  this  court 
does  not  require  it.  In  a  suit  in  equity  against  an  unincorporated 
company  of  numerous  members  to  enforce  a  right  against  the  whole 
body,  it  is  not  necessary  to  make  all  the  members  parties,  but  it  is 
enough  if  so  many  be  made  parties  as  to  insure  a  fair  and  honest 
trial.  Story's  Eq.  PL,  sec.  107.  Here,  though  only  two  of  the  mem- 
bers are  made  parties,  they  are  the  persons  who  hold  the  offices  of 
president  and  secretary  and  treasurer,  and  are  manifestly  enough  to 
insure  a  fair  trial  of  the  matter  in  dispute.  ... 

The  demurrer  will  be  overruled,  with  costs. ^ 

^  Fletcher  v.  Tribe,  9  Pa.  Sup.  Ct.,  393,  397  (held,  a  member  cannot  sue  an  un- 
incorporated Friendly  Society  at  law  for  sick  benefits).     Leahy  v.  Williams,  141 


582  CORPORATE   FEATURES   OF   LABOR   UNIONS  [CHAP.  XI 

SOCIETY  OF  SHAKERS  v.  WATSON 
U.  S.  Circuit  Court  of  Appeals,  Sixth  Circuit.     1895 

68  Fed.  730 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the  Dis- 
trict of  Kentucky. 

This  was  a  suit  by  Oliver  Watson  and  Letitia  Souther,  as  exec- 
utrix of  Henry  Souther,  deceased,  against  the  Society  of  Shakers 
at  Pleasant  Hill,  Ky.,  Napoleon  D.  Brown,  James  W.  Shelton,  and 
Mary  Jane  Sutton,  trustees  of  said  society,  to  subject  the  property 
of  the  society  to  a  charge  for  the  payment  of  a  note.  The  Circuit 
Court  rendered  a  decree  for  the  complainants.  Defendants  appeal. 
Affirmed. 

The  original  bill  in  this  case  was  filed  on  the  11th  day  of  May, 
1891,  in  the  names  of  Oliver  Watson  and  Henry  Souther,  as  com- 
plainants, against  the  defendants  above  named,  for  the  purpose  of 
subjecting  the  property  of  the  said  Society  of  Shakers,  one  of  the 
above-named  defendants,  to  an  equitable  charge  for  the  payment 
of  a  promissory  note  alleged  to  have  been  executed  by  the  said  society 
on  the  18th  day  of  October,  1882,  and  given  to  one  M.  M.  Mays,  of 
which  the  following  is  a  copy: 

"$9985.  October  18,  1882. 

"Seven  years  after  date,  we  promise  to  pay  to  the  order  of  M.  M. 
Mays,  or  bearer,  the  sum  of  nine  thousand  nine  hundred  and  eighty- 
five  dollars /lOO  dollars,  value  received,  with  interest  at  the 

rate  of  6  per  cent  per  annum  from  date  until  paid.  Negotiable  and 
payable  at  the  Fourth  National  Bank,  Cincinnati.  If  not  paid 
when  due,  to  bring  8  per  cent  from  date. 

"Dunlavy  &  Scott, 
"Trustees  of  the  Society  of  Shakers  at  Pleasant  Hill,  Kentucky." 

At  the  time  of  the  bringing  of  this  suit,  the  defendants  Brown, 
Shelton,  and  Sutton  were  the  trustees  of  the  society,  and  were  made 
parties  as  such,  and  also  in  their  individual  capacities  as  members 
thereof.  Dunlavy  and  Scott  and  one  Boisscau  were,  at  the  time  of 
making  the  note,  trustees  of  the  society.  This  note  was  sold  and 
indorsed  by  Mays  to  the  complainant  Watson  on  or  about  July  2, 
1889,  in  part  payment  for  a  farm  known  as  "Chatham,"  near  Fred- 
ericksburg, Va.  In  August,  1889,  Watson  borrowed  from  the  com- 
plainant Souther  the  sum  of  $5000,  and,  as  collateral  security  for 
the  payment  of  that  sum,  pledged  the  above-mentioned  note  to 
Souther,  and  delivered  it  to  him,  but  did  not  indorse  it.   .   .   . 

Ma.ss.  345,  357.  See  also,  The  United  Mine  Workers  v.  The  Coroiuido  Coal  Co.,  — 
U.  S.  —  (decided  June  5,  1922),  supra,  p.  533. 


SECT.  Til]  LIABILITY    IN    RESPECT   TO    ASSETS  583 

Before  Taft  and  Lurton,  Circuit  Judges,  and  Severens,  District 
Judge. 

Having  stated  the  case  as  above,  Severens,  District  Judge,  de- 
livered the  opinion  of  the  court.^  .  .  . 

The  next  ground  of  defense  is  that  the  court  had  no  jurisdiction, 
because  there  was  a  plain  and  adequate  remedy  at  law.  What  the 
supposed  plain  and  adequate  remedy  at  law  is  in  such  a  case  is  not 
very  clearly  shown  to  us.  It  was  the  society,  and  not  the  individual 
members,  which  made  the  note.  Some  of  the  members  were  adults, 
and  some  infants.  The  society  was  not  a  "partnership."  Neither 
was  it  a  "corporation,"  in  the  proper  sense  of  that  term.  The  mem- 
bers have  no  property,  having  renounced  all  to  the  society.  It  is  a 
somewhat  anomalous  case,  but  is  yet  of  a  kind  which  occasionally 
appears  in  the  books  of  reports,  and  in  regard  to  which  the  law  has 
been  settled  by  a  number  of  decisions.  It  is  urged  that  the  statute 
of  Kentucky  in  regard  to  the  remedy  in  such  cases  is  of  no  avail. 
It  is  said  that  it  is  unconstitutional,  in  that  it  attempts  to  vest  a 
court  of  equity  with  jurisdiction  of  a  purely  legal  right.  .  .  . 

That  the  rights  here  dealt  with  partake  of  an  equitable  character 
had  been  decided  in  the  courts  of  chancery  long  before  the  date  of 
this  statute,  and  the  doctrine  has  now  become  so  well  established 
that  we  should  not  hesitate  to  support  the  jurisdiction  if  the  Ken- 
tucky statute  had  never  been  enacted.  Let  us  first  suppose  that  the 
note  constitutes  a  legal  obligation  upon  which  an  action  at  law  can 
be  maintained.  Against  whom  shall  the  suit  be  brought.''  Not 
against  the  society,  for  it  is  not  a  corporation,  and  has  no  legal  exist- 
ence as  an  aggregation.  If  the  suit  be  brought  against  the  members, 
what  members  are  liable.'  Probably  such  only  as  were  sui  juris  at 
the  time  of  making  the  note.  But  some  of  these  are  dead,  and  others 
may  have  withdrawn.  The  suit,  if  brought,  would  be  liable  to  re- 
peated abatements.  Perhaps  these  difficulties  could  be  got  along 
with.  But  a  greater  one  would  be  experienced  in  the  remedy  for  the 
satisfaction  of  the  judgment.  The  members  have  no  private  prop- 
erty. All  is  merged  in  the  common  mass.  There  is  no  inheritance 
and  no  estate  which  would  go  to  an  administrator.  It  would  be  an 
extremely  embarrassing  task  to  identify  any  legal  interest  of  the 
members  in  the  common  propertj^  upon  which  an  execution  could 
be  levied.  .  .  . 

It  would  result  from  these  considerations  that  this  bill  could  be 
maintained  if  the  note  could  be  regarded  as  imposing  a  technicallj'- 
legal  liability.  But  we  doubt  if  it  can  be  so  regarded,  and  are  in- 
clined to  think  that  the  rights  secured  by  it  are  of  a  purely  equitable 
character.  Looking  to  the  circumstances  in  which  this  note  was 
given,  we  think  it  cannot  be  doubted  that  it  was  intended  to  charge 
the  property  of  the  society.    The  society  itself,  as  has  already  been 

^  Only  that  part  of  the  opinion  dealing  with  the  defense  that  the  court  had  no 
jurisdiction  because  there  was  an  adequate  remedy  at  law  is  given.  —  Ed. 


584  CORPORATE    FEATURES   OF   LABOR   UNIONS  [CHAP.  XI 

said,  was  not  a  corporation  of  which  the  law  could  lay  hold,  nor  was  it 
a  partnership.  It  was  but  a  mere  name  given  to  a  community  whose 
membership  is  constantly  shifting.  The  note  was  not  effectual 
against  an\i:hing  but  this  changing  body,  and  that  only  by  suppos- 
ing it  to  be  intended  to  be  a  charge  against  the  property  which  all 
the  members  of  the  society  had  concurred  in  putting  in  a  common 
mass  in  the  hands  of  the  trustees  of  the  society.  It  could  not  be 
accepted  that  the  society  intended  to  obtain  the  money,  appropriate 
it  to  its  own  use,  and  give  this  note  as  an  idle  form,  which  it  is  unless 
it  charges  their  property.  And  the  consideration  of  the  note  went 
to  augment  the  fund  upon  which  it  is  sought  to  charge  it.  "Rights 
in  equity  equivalent  to  liens  may  arise  under  various  circumstances. 
Thus,  real  or  personal  estate  may  be  charged  by  an  agreement,  ex- 
press or  implied,  creating  a  trust  which  equity  will  enforce."  Snell, 
Eq.  (2d  ed.)  274.  "In  courts  of  equity  the  term  '  lien  '  is  used  as 
synonymous  with  a  charge  of  incumbrance  upon  a  thing,  where  there 
is  neither  jus  in  re,  nor  ad  Yem,  nor  possession  of  the  thing.  The 
term  is  applied  as  well  to  charges  arising  by  express  engagement 
of  the  owner  of  property,  as  to  a  duty  or  intention  implied  on  his 
part  to  make  the  property  answerable  for  the  specific  debt  or  en- 
gagement. Mr.  Justice  Erie  once  remarked  [Brunsdon  v.  Allard, 
2  El.  &  El.  27]  that  '  the  words  "equitable  lien"  are  intensely  un- 
defined.' It  is  necessarily  the  case  that  something  of  vagueness  and 
uncertaint}^  should  attend  a  doctrine  that  is  of  such  wide  and  varied 
application  as  is  this  of  equitable  lien;  and  yet  the  principles  are 
as  well  defined  as  other  equitable  principles,  and  their  application 
to  certain  well-established  classes  of  liens  is  well  settled.  To  apply 
them  to  that  undefined  class  of  liens  which  arises  from  the  contracts 
of  parties  may  be  more  difficult,  because  those  liens  are  as  various 
as  are  the  contracts,  and  precedents  which  exactly  apply  may  not 
be  found.  This  wide  application  of  the  doctrine  is  one  element  of 
the  importance  of  this  branch  of  equity  jiu-isprudcncc."  1  Jones, 
Liens,  sec.  28.  And  Pomeroy,  in  discussing  the  subject  of  equitable 
liens,  says:  "There  is  no  doctrine  which  more  strikingly  shows  the 
difference  between  the  legal  and  equitable  conceptions  of  the  judicial 
results  which  flow  from  the  dealings  of  men  with  each  other  from 
their  express  or  implied  undertakings."  3  Pom.  Eq.  Jur.,  sec.  1234.  .  .  . 

The  bill  in  this  case  makes  the  society,  the  trustees,  and  three  of 
the  members  parties  defendant.  In  our  opinion,  this  was  sufficient. 
It  belongs  to  that  class  of  cases  in  which  it  has  been  held  that  when 
the  parties  are  numerous,  and  it  is  inconvenient  to  bring  them  all 
before  the  court,  a  roprcscnitation  of  them  may  bo  constituted,  and 
the  representatives  be  made  parties  to  prosecute  or  defend  for  all.  .  .  . 

This  was  a  case  where  the  parties  themselves  had  lodged  the  au- 
thority of  managoinont  in  certain  officers.  The  same  principle  ob- 
tains where  tin!  court  itself  adopts  a  few  as  representatives  of  the 
whole.     Story,  Eq.  PI.,  sees.  117,  118. 


SECT.  Ill]  LIABILITY   IN    RESPECT   TO    ASSETS  585 

We  therefore  conclude  that  the  suit  is  properly  brought  in  equity, 
and  that  the  defendants  are  rightly  constituted.  .  .  . 

We  think  the  decree  of  the  court  below  is  right,  and  it  is  accord- 
ingly affirmed.^ 

RoDENBECK,  J.,  IN  MICHAELS  V.  HILLMAN 

112  Misc.  (N.  Y.)  395,  412  (1920) 

All  of  the  defendants  who  acted  in  concert  with  respect  to  the 
illegal  means  conceived  and  employed  are  liable  for  damages  oc- 
casioned thereby.  The  national  organization  must  bear  its  share 
of  the  responsibility.  It  had  two  national  organizers  on  the  ground 
before  the  strike  was  called  and  it  is  a  fair  conclusion  that  they  were 
directing  the  action  of  the  joint  board  and  the  conduct  of  the  strike 
in  the  interest  of  the  national  body.  The  national  officers  may  not 
have  been  informed  of  the  strike  before  it  was  called,  but  they  had 
sent  two  national  organizers  to  Rochester  for  no  other  purpose  than 
to  handle  the  situation  which  it  is  claimed  was  of  more  than  local 
importance.  The  national  organization  cannot  escape  responsi- 
bility for  a  situation  which  through  its  direct  representatives  it  took 
part  in  shaping  and  for  acts  in  which  through  its  organization  it 
participated.  The  familiar  rule  that  a  principal  is  liable  for  the  acts 
of  his  agent  done  in  the  course  of  his  emplojoiient,  applies  to  the 
national  organization  and  its  membership.  5  C.  J.  1364.  An  or- 
ganization of  175,000  members  cannot  escape  responsibihty  because 
a  direct  personal  connection  cannot  be  traced  between  each  individ- 
ual member  and  the  acts  complained  of.  Such  a  body  must  act 
through  agents  just  like  a  corporation  and  both  are  responsible  for 
the  authorized  acts  of  such  agents.  The  general  executive  board 
and  the  general  president,  acting  under  its  direction,  had  the  un- 
doubted right  to  call  the  strike  (Amalgamated  C.  Workers  const, 
art.  VI,  sees.  1,  13)  and  in  sending  national  organizers  to  Rochester 
the  organization  must  assume  the  responsibility  for  their  acts.  All 
of  the  defendants  are  liable  who  knew  or  ought  to  have  known  of 
the  concerted  action  for  the  common  object  (Lawlor  v.  Loewe,  209 
Fed.  721,  727)  and  the  national  body  is  responsible  as  such,  under  the 
doctrine  of  agency.  Hitchman  Coal  &  Coke  Co.  v.  Mitchell,  245 
U.  S.  229.  The  calling  of  the  strike  was  also  ratified  and  its  conduct 
sanctioned  by  the  president  of  the  Amalgamated  Clothing  Workers 
and  the  national  organization  must  be  held  liable  with  the  other  de- 
fendants both  for  the  initiation  of  the  strike  and  its  subsequent  con- 
duct. This  responsibility,  however,  does  not  impose  a  personal 
liability  upon  the  entire  membership  but  only  upon  those  who  are 
named  as  defendants  and  personally  participated,  directly  or  in- 

1  Accord:  Gortemiller  v.  Rosengarn,  103  Ind.  414;  Bushong  ;•.  Taylor,  82  Mo. 
660;  Harrisburg  Co.  v.  Washburn,  29  Ore.  150;  Linn  v.  Carson,  32  Gratt.  (Va.) 
170,  183. 


586  CORPORATE    FEATURES   OF   LABOR   UNIONS  [CHAP.  XI 

directl}^  in  the  wrongful  acts  complained  of.  It  was  claimed  that  the 
situation  in  Rochester  was  of  general  concern  to  the  organization  and 
it  cannot  be  successfully  maintained  that  the  strike  was  not  a  con- 
ception of  the  national  organization  in  the  interest  of  its  general 
membership  and  especially  its  membership  in  Rochester.  The  meet- 
ings of  its  members  employed  by  the  plaintiffs  and  the  actions  of  com- 
mittees and  the  joint  board  were  only  the  local  machinerj^  for  putting 
the  strike  in  operation.  As  soon  as  it  was  launched  the  national  or- 
ganization took  an  active  and  open  part  in  conducting  it  through 
national  representatives,  including  the  president,  and  through 
financial  assistance.  It  cannot  be  possible  that  a  great  organization 
like  the  Amalgamated  Clothing  Workers  can  project  and  carry  on 
a  strike  in  the  manner  in  which  it  was  conducted  in  this  case  and 
avoid  responsibility  and  liability  for  its  acts.  A  concert  of  action 
by  a  labor  organization  and  its  members  to  compel  recognition  of 
a  union  or  to  redress  grievances  by  means  of  threats,  intimidation, 
force,  violence  or  similar  coercive  measures  constitutes  a  conspiracy, 
whether  such  intention  was  present  at  the  inception  of  the  strike  or 
afterward,  and  a  national  unincorporated  labor  union  is  liable  for 
damages  if  its  officers  and  agents  acting  within  the  scope  of  their 
authority  as  such  called  and  carried  on  the  strike  with  the  intention 
of  using  such  unlawful  means,  and  used  such  means,  but  the  liability 
does  not  extend  to  the  individual  members  who  are  not  specially 
connected  with  such  acts. 

The  plaintiffs  are  entitled  to  a  permanent  injunction  restraining 
the  defendants  substantially  in  the  terms  of  the  temporary  injunc- 
tion heretofore  granted  and  to  damages  to  be  hereafter  determined. 

Judgment  accordingly.^ 

THE  UNITED  MINE  WORKERS  v.  THE  CORONADO 

COAL  CO. 
Supreme  Court  of  the  United  States.     1922 
—  U.S.— 
See  supra,  p.  533,  for  a  report  of  the  case. 

OPINION  OF  THE  JUSTICES 
Or  THE  Supreme  Judicial  Court  of  Massachusetts.     1912 

211  Mass.  618 
The  following  order  was  passed  by  the  Senate  on  April  22,  1912, 
and  on  April  26,  1912,  was  transmitted  to  the  justices  of  the  Supreme 
Judicial  Court.     On  May  8,  1912,  the  justices  returned  the  answer 
which  is  subjoined. 

'  Accord:  St.  Germain  v.  Bakery  &  Confectionery  Workers'  Union,  97  Wash. 
282,  294.  Compare  Denaby  and  Cadeby  Collieries  v.  Yorkshire  Miners'  Assn., 
[1906]  A.  C.  384;  Crawley  r.  American  Society  of  Equity,  153  Wis.  13. 


SECT.  Ill]  LIABILITY    IN    RESPECT    TO    ASSETS  587 

Ordered,  That  the  opinion  of  the  justices  of  the  Supreme  Judicial 
Court  bejrequired  by  the  Senate  upon  the  following  question  of  law: 

Is  an  act  of  the  Legislature  constitutional  which  provides  that  an 
action  shall  not  be  entertained  by  any  court  against  a  trade  union, 
or  an  association  of  employers,  or  against  any  members  or  officials 
thereof,  in  respect  to  a  tortious  act  alleged  to  have  been  committed 
by  or  on  behalf  of  a  trade  union  or  an  association  of  employers?  .  .  , 

To  the  Honorable  Senate  of  the  Commonwealth  of  Massachusetts: 
We,  the  justices  of  the  Supreme  Judicial  Court,  have  considered 
the  question  upon  which  our  opinion  is  required  by  the  order  of 
April  22,  1912,  a  copy  of  which  is  hereto  annexed,  and  respectfully 
submit  this  opinion: 

The  Constitution  of  the  United  States  in  Art.  14  of  the  Amend- 
ments expressly  provides  that:  No  State  shall  "deprive  any  per- 
son of  life,  liberty,  or  property,  without  due  process  of  law;  nor 
deny  to  any  person  within  its  jurisdiction  the  equal  protection  of 
the  laws."  Absolute  equality  before  the  law  is  a  fundamental  prin- 
ciple of  our  own  Constitution.  Frequent  expressions  to  this  effect 
are  found  in  various  articles.  For  example,  it  is  said  that  "All  men 
are  born  free  and  equal";  that  "Each  individual  of  the  society  has 
a  right  to  be  protected  by  it  in  the  enjoyment  of  his  life,  liberty,  and 
property,  according  to  standing  laws";  that  "Every  subject  of  the 
Commonwealth  ought  to  find  a  certain  remedy,  by  having  recourse 
to  the  laws,  for  all  injuries  or  wrongs  which  he  may  receive  in  his 
person,  property,  or  character";  and  that  the  several  departments 
of  government  are  separated  "to  the  end  it  may  be  a  government 
of  laws  and  not  of  men."  Declaration  of  Rights,  Art.  1,  10,  11, 
and  30. 

The  proposed  bill  to  exempt  associations  of  employers  and  trade 
unions  and  their  members  and  officials  from  actions  of  tort  com- 
mitted by  or  on  behalf  of  such  association  or  union  is  plainly  con- 
trary to  these  constitutional  guaranties.  It  gives  to  certain  favored 
ones,  selected  arbitrarily,  immunity  from  that  equal  liability  for 
civil  wrongs  which  is  a  sign  of  equality  between  citizens  and  resi- 
dents. It  undertakes  to  clothe  combinations  of  employers  and 
laborers  with  special  power  denied  to  other  employers  and  laborers 
and  other  members  of  society.  In  another  aspect,  it  deprives  all 
individuals  and  associations,  other  than  those  named,  of  the  pro- 
tection to  safety,  liberty,  and  propert}^  which  any  free  government 
must  secure  to  its  subjects.  It  takes  from  them  the  unhampered 
right  to  assert  in  the  courts  claims  against  all  who  tortiously  assail 
their  person  and  property  and  to  recover  judgment  for  the  injuries 
done.  It  would  prevent  all  persons  from  having  recourse  to  law  for 
vindication  of  rights  or  reparation  for  wrongs  against  the  privileged 
few  therein  designated.  It  imposes  upon  some  burdens  of  which 
others  in  hke  situation  are  relieved.    It  throws  obstacles  in  the  path- 


588  CORPORATE    FEATURES   OF   LABOR   UNIONS  [CHAP.  XI 

way  of  those  outside  unions  or  associations  in  the  pursuit  of  their 
Hvehhood  and  in  the  prosecution  of  their  business  not  interposed  in 
the  way  of  members  of  such  organizations.  It  purposes  to  give  to 
one  class  of  wage-earners  advantages  withheld  from  others  not  be- 
longing to  a  trade  union  who  are  engaged  in  the  same  kind  of  work 
and  for  the  same  emploj^er.  It  frees  one  set  of  employers  from  obliga- 
tions to  which  their  competitors,  who  are  independent  of  the  asso- 
ciation, are  subjected.  In  short,  it  destroys  equahty  and  creates 
special  privilege. 

Manifestly,  it  needs  no  discussion  and  no  further  statement  to 
demonstrate  that  legislation  hke  that  embodied  in  the  bill  would 
violate  in  many  respects  underlying  principles  and  fundamental 
provisions  of  the  Constitution  of  this  Commonwealth  and  of  the 
United  States.^ 

Arthur  P.  Rugg. 

James  M.  Morton. 

John  W.  Hammond. 

William  Caleb  Loring. 

Henry  K.  Braley. 

Henry  N.  Sheldon. 

Charles  A.  DeCourcy. 


LINAKER  V.  PILCHER 

King's  Bench  Division.     1901 

70  L.  J.  K.  B.  396 

The  plaintiff  was  employed  by  the  London  and  North-Western 
Railway  as  a  district  superintendent  of  the  railway  at  Manchester. 

The  defendants  John  Pilcher,  Philip  Hewlett,  and  George  Alcock 
were  the  trustees  of  the  Amalgamated  Society  of  Railway  Servants 
of  England,  Ireland,  Scotland,  and  Wales,  which  was  registered 
under  the  Trade  Union  Acts,  1871  and  1876,  and  whose  registered 
office  was  situate  in  the  county  of  London. 

The  society  and  the  defendants,  the  trustees,  were  the  proprietors 
and  publishers  of  a  certain  weekly  newspaper,  called  the  Railway 
Review,  and  the  defendant  George  Waidle  was  the  editor  of  the  news- 
paper. 

The  action  was  brought  to  recover  damages  for  a  libel  contained 
in  the  newspaper  charging  the  plaintiff  with  drunkenness. 

The  defendants,  the  three  trustees,  by  their  defence  put  in  a  plea 
of  justification,  and  object<^d  that  as  a  matter  of  law  they  could  not 
in  this  action  be  sued  in  tlicir  capacity  of  trustees  in  any  way  so  as 
to  bind  the  society  or  the  property  thereof. 

The  jury  found  a  verdict  for  the  plaintiff  with  1000/.  damages, 

1  Compare  the  English  Trade  Disputes  Act,  1906,  Section  4  (6  Edw.  VII,  c.  47), 
supra,  p.  24. 


SECT.  Ill]  LIABILITY   IN    RESPECT   TO   ASSETS  589 

and  the  question  as  to  the  vahdity  of  the  defendants'  objection  to 
the  action  in  point  of  law  was  reserved  for  argument.  .  .  . 

Mathew,  J.  This  was  an  action  for  Hbel  in  which  the  plaintiff 
recovered  a  verdict  for  damages  against  the  defendants.  The  de- 
fendants were  trustees  of  a  trade  union,  the  Amalgamated  Society 
of  Railway  Servants,  and  the  sole  question  at  the  trial,  all  others 
being  reserved,  was  whether  or  not  there  had  been  a  libel  for  which 
it  was  assumed  for  the  purposes  of  the  case  that  the  defendants  as 
proprietors  of  the  newspaper  were  responsible.  In  the  defence  a 
point  was  made  which  was  reserved  for  further  consideration  — 
namely,  that  "the  defendants"  (the  trustees)  "will  object  that  as 
a  matter  of  law  they  cannot  in  this  action  be  sued  in  their  capacity 
as  trustees  in  any  way  so  as  to  bind  the  Amalgamated  Society  of 
Railway  Servants  of  England,  Ireland,  Scotland,  and  Wales,  or  the 
property  thereof."  .  .  . 

Under  sec.  8  of  the  Trade  Union  Act,  1871,  it  appears  that  the 
property  of  the  society  is  vested  in  the  trustees,  and  by  sec.  16  the 
trustees  of  the  society  are  bound  to  publish  annual  reports  shewing 
the  position  of  the  affairs  of  the  society,  and  from  time  to  time  in 
these  annual  returns  the  newspaper  in  question  had  been  treated 
as  an  asset  of  the  society,  and  there  was  a  profit  and  loss  account 
shewing  that  the  newspaper  had  been  carried  on  upon  nearly  even 
terms,  the  expenditure  being  slightly  in  excess  of  the  receipts  from 
the  newspaper.  That  being  so,  the  trustees  being  the  owners  of 
this  property  under  the  rules  for  the  management  of  the  society, 
and  under  the  Act  of  1871,  and  particularly  sec.  8,  it  was  said  on 
behalf  of  the  plaintiff  that  the  trustees  are  in  the  ordinary  position 
of  those  who  have  a  liability  cast  upon  them  within  the  limits  of  their 
trust  by  reason  of  their  position  as  trustees,  and  therefore  that  the 
rule  applied  that  the  trustees  were  entitled  to  be  indemnified  in 
respect  of  any  responsibility  and  liability  cast  upon  them  on  behalf 
of  those  for  whom  they  were  acting.  It  was  admitted  that  the  funds 
of  the  society  are  ample,  while  the  trustees  are  not  in  a  position  to 
meet  the  liability,  and  that  therefore,  under  the  rule  to  which  I  have 
referred,  those  who  placed  the  trustees  where  they  were  as  proprietors 
of  this  paper  and  thereby  rendered  them  liable  in  this  action  for 
damages,  are  bound  to  indemnify  them,  and  that  the  assets  of  the 
society  are  therefore  liable.  In  answer  to  that  position  it  was  con- 
tended for  the  defendants  —  first,  that  this  is  an  action  of  tort,  and 
that  the  persons  who  were  made  responsible  in  the  action  for  that 
tort  were  alone  liable,  and  that  there  was  no  right  of  recourse  to  the 
society,  and  that  there  was  no  authority  for  transferring  the  liability 
in  that  way  or  treating  such  a  case  as  within  the  ordinary  rule  be- 
tween trustee  and  cestui  que  trust.  The  defendants  were  therefore, 
it  was  said,  alone  bound  to  pay  the  damages,  and  had  no  right  to 
claim  any  indemnity  from  the  society.  It  was  admitted  that  the 
trustees  were  not  personally  liable  as  wrongdoers  in  the  sense  that 


590  CORPORATE    FEATURES    OF    LABOR   UNIONS  [CHAP.  XI 

they  authorised  the  publication  in  any  way.  They  had  no  more 
to  do  with  it  than  the  proprietor  of  a  newspaper  whose  editor,  without 
his  knowledge  or  sanction,  inserts  something  in  it  that  is  defamatory, 
and  gives  rise  to  a  cause  of  action.  There  was  no  evidence  that  the 
three  trustees  had  anything  whatever  to  do  with  the  conduct  of  the 
paper.  It  was  however  said  on  behalf  of  the  plaintiff  that  there 
was  no  reason  why  they  should  not  be  indemnified,  seeing  that  their 
liability  arose  from  the  fact  that  the  society  placed  them  in  the  posi- 
tion of  legal  proprietors  of  the  newspaper,  and  made  them  therefore 
responsible  for  this  action.  On  behalf  of  the  plaintiff  it  was  asked 
for  what  reason  was  it  said  that  the  society  was  not  to  be  responsible 
as  any  ordinary  cestui  que  trust  would  be.  In  answer  to  that  ques- 
tion no  principle  of  law  was  relied  upon,  but  it  was  said  that  if  the 
Trade  Union  Act,  1871,  were  carefully  examined,  clear  indication 
would  be  found  that  a  trade  union  was  never  intended  to  be  made 
responsible  in  respect  of  a  cause  of  action  against  its  trustees,  how- 
ever clearly  it  may  appear  that  that  cause  of  action  has  arisen  within 
the  limits  of  the  trust  and  by  reason  of  the  position  in  which  the 
trustees  have  been  placed  by  their  principals.  In  support  of  that 
argument  attention  was  called  to  sees.  8  and  9  of  the  Act  of  1871. 
Sec.  8  is  the  provision  for  vesting  the  property.  That  is  followed  by 
sec.  9,^  to  which  my  attention  was  called  as  containing  a  very  im- 
portant provision,  as  it  was  suggested,  for  the  protection  of  trade 
unions;  and  certainly,  if  the  contention  submitted  to  me  upon  it 
was  well  founded,  it  was  a  very  important  point  in  the  interest  of 
trade  unions,  because  it  would  follow  that  for  any  breach  of  con- 
tract, for  any  tort  committed  by  a  trade  union  and  for  which  their 
trustees  are  liable,  the  trade  union  would  be  free  from  any  liability, 
and  enjoy  complete  immunity.  I  was  therefore  not  surprised  that 
this  contention  was  strongly  urged  by  those  who  support  the  in- 
terests of  the  trade  union  in  this  case.  It  was  said  that  it  is  notice- 
able that  what  the  trustees  are  empowered  to  do  by  sec.  9  is  to  bring 
or  defend  an  action  in  respect  of  any  right  or  claim  or  liability  to  the 

1  Sec.  9  of  the  Trade  Union  Act,  1871,  is  as  follows:  "The  trustees  of  any  trade 
union  registered  under  this  Act,  or  any  other  officer  of  such  trade  union  who  may 
be  authorised  so  to  do  by  the  rules  thereof,  are  hereby  empowered  to  bring  or 
defend,  or  cause  to  be  brought  or  defended,  any  action,  suit,  prosecution,  or 
complaint  in  any  Court  of  law  or  equity,  touching  or  concerning  the  property, 
right,  or  claim  to  property  of  the  trade  union;  and  shall  and  may,  in  all  cases 
concerning  the  real  or  personal  property  of  such  trade  union,  sue  and  be  sued, 
plead  and  be  impleaded,  in  any  Court  of  law  or  equity,  in  their  proper  names, 
without  other  description  than  the  title  of  their  offi(^e;  and  no  such  action,  suit, 
prosecution,  or  complaint  shall  be  discontinued  or  shall  abate  by  the  death  or 
removal  from  office  of  such  persons  or  any  of  them,  but  the  same  shall  and  may 
be  proceeded  in  l)y  their  successor  or  successors  as  if  such  death,  resignation,  or 
removal  had  not  taken  place;  and  such  successors  shall  pay  or  receive  the  like 
cost  as  if  the  action,  suit,  prosecution,  or  complaint  had  been  commenced  in  their 
names  for  the  benefit  of  or  to  be  reimbursed  from  the  funds  of  such  trade  union, 
and  the  summons  to  b(!  issu(!d  to  such  trustee  or  other  of!ic(!r  may  be  served  by 
leaving  the  same  at  the  registennl  office  of  \\m  trade  union."  —  Ed. 


SECT.  Ill]  LIABILITY    IN    RESPECT   TO    ASSETS  591 

property  of  the  trade  union,  and  to  recover  goods  or  land  the  prop- 
erty of  the  trade  union,  and  that,  although  an  action  might  be  brought 
to  defend  any  proceedings  against  property  belonging  to  the  trade 
union,  the  intention  was  to  protect  specific  property  alone,  and 
that,  as  this  is  not  a  case  of  specific  property,  the  liabihty  estabhshed 
by  this  and  all  analogous  actions  must  rest  where  it  falls  —  that 
is,  upon  the  trustees  or  the  executive  committee  —  and  cannot  be 
transferred  to  their  principals,  if  the  trade  union  may  be  so  described. 
I  am  of  opinion  that  that  would  be  an  extremely  narrow  construction 
of  the  section.  There  seems  to  me  to  be  no  reason  why  there  should 
be  that  disability  imposed  upon  the  trustees  in  respect  of  any  except 
specific  property,  and  it  is  difficult  to  conjecture  why  any  such  mean- 
ing should  be  attributed  to  the  Legislature.  I  am  satisfied  that 
there  was  no  such  intention.  ...  It  therefore  follows  that,  in  my 
judgment,  the  construction  sought  to  be  put  on  that  section  is  not 
the  correct  one.  .  .  . 

My  judgment  is  therefore  for  the  plaintiff  with  reference  to  this 
point  raised  in  the  defence;  and  I  hold  that  the  defendants  the 
trustees  are,  as  such  trustees,  entitled  to  be  indemnified  out  of  the 
funds  of  the  society.  There  will  therefore  be  judgment  for  the  plain- 
tiff for  lOOOL  damages  and  costs  against  the  defendants  the  trustees, 
as  well  as  against  the  defendant  War  die,  as  to  whom  no  point  arises, 
and  a  declaration  that  they  are  entitled  to  be  indemnified  out  of  the 
funds  of  the  society.  Judgment  accordingly} 


ENGLISH  TRADE  DISPUTES  ACT,  1906,  Section  4 
6  Edw.  VII,  c.  47 
See  supra,  p.  24,  for  the  text  of  this  Section. 

VACHER  &  SONS,  LIMITED  v.  LONDON  SOCIETY 

OF  COMPOSITORS 

House  of  Lords.     1912 

[1913]  A.  C.  107 

Appeal  from  an  order  of  the  Court  of  Appeal  reversing  an  order 
of  Channell,  J.,  in  chambers,  [1912]  3  K.  B.  547. 

The  appellants  were  general  and  parliamentary  printers  carrying 
on  business  at  Westminster^  The  respondent  society  was  a  registered 
trade  union.  On  July  28,  1911,  the  appellants  commenced  an  action 
against  the  respondent  society  and  two  other  defendants,  Naylor 

1  Accord:  Rickards  v.  Bartram,  25  T.  L.  R.  181  (1908).  As  to  the  English 
law  concerning  the  liabihty  of  trade  unions  for  tortious  acts  committed  on  their 
behalf,  see  Geldart  in  25  H.  L.  R.  594-598. 

Compare  Denaby  and  Cadeby  Collieries  v.  Yorkshire  Miners'  Assn.,  [1906] 
A.  C.  384. 


592  CORPORATE    FEATURES   OF   LABOR   UNIONS  [CHAP.  XI 

and  Holmes,  who  were  respectively  the  secretary  and  thfe  organizing 
secretary  of  the  society,  for  damages  for  conspiracy  to  libel  and  for 
hbel. 

On  January  27,  1912,  the  appellants  delivered  an  amended  state- 
ment of  claim  containing  particulars  of  their  complaints. 

The  libels  alleged  in  the  amended  statement  of  claim  were  con- 
tained (1)  in  a  new  edition  of  a  document  entitled  "The  Composi- 
tors' Fair  List  and  Guide  to  the  London  Printing  Offices,"  from 
which  the  appellants'  name  was  omitted,  and  a  covering  letter  en- 
closing the  list,  copies  of  which  were  sent  by  the  defendant  Naylor 
in  December,  1909,  to  various  customers  of  the  appellants;  (2)  in 
a  letter,  dated  July  13,  1911,  addressed  by  the  defendant  Holmes 
to  the  United  Committee  of  the  Taxation  of  Land,  who  were  cus- 
tomers of  the  appellants.  The  meaning  of  these  documents,  as  al- 
leged b}^  the  appellants,  was  that  the  appellants  had  been  guilty  of 
unfair  dealings  in  their  business,  that  they  were  in  the  habit  of  treat- 
ing their  employees  harshly,  that  they  never  employed  trade  union 
compositors,  and  that  they  were  not  fit  and  proper  persons  to  be 
entrusted  with  the  execution  of  orders  for  printing. 

On  February  22,  1912,  the  respondents  obtained  from  a  Master 
an  order  that  their  name  should  be  struck  out  of  the  writ  of  sum- 
mons and  all  subsequent  proceedings  in  the  action  upon  the  ground 
that  under  sec.  4,  sub-sec.  1,  of  the  Trade  Disputes  Act,  1906,  the 
action  was  not  competent  as  against  them. 

On  February  26  this  order  was  reversed  by  Channell,  J.,  in  cham- 
bers, the  learned  judge  being  of  opinion  that  this  question  was  one 
which  ought  not  to  be  decided  summarily,  but  ought  to  be  dealt 
with  at  the  trial. 

On  April  3  the  Court  of  Appeal  (Vaughan  Williams,  and  Ken- 
nedy, L.JJ.,  Farwell,  L.  J.,  dissenting)  rescinded  the  order  of  Chan- 
nell, J.,  and  restored  the  order  of  the  Master.  .  .  . 

The  House  took  time  for  consideration. 

Viscount  Haldane,  L.  C.^  My  Lords,  this  appeal  raises  the  ques- 
tion of  the  true  construction  to  be  put  on  sec.  4  of  the  Trade  Disputes 
Act,  1906.  That  Act  was  passed  five  years  after  the  decision  of  this 
House  in  the  case  of  TafT  Vale  Ry.  Co.  v.  Amalgamated  Society  of 
Railway  Servants,  [1901]  A.  C.  426.  It  had  been  there  decided 
that  a  trade  union,  registered  under  the  Trade  Union  Acts,  could 
be  sued  in  its  registered  name,  and  also  that  a  trade  union,  whether 
registered  or  not,  could,  since  the  Judicature  Acts,  be  sued  in  a  rep- 
resentative action  at  common  law,  if  the  persons  selected  as  de- 
fendants were  persons  who  from  their  position  might  fairly  be  taken 
to  represent  the  union.  It  was  pointed  out  by  Lord  Lindley  that  if 
a  judgment  so  obtained  was  for  the  payment  of  damages  it  could  be 
enforced  only  against  the  property  of  the  union,  and  that  to  reach 

1  Separate  opinions  were  rendered  by  Lord  Macnaghten,  Lord  Atkinson, 
Lord  Shaw  of  Dunfermline,  and  Lord  Moulton.  —  Ed. 


SECT.  Ill]  LIABILITY   IN   RESPECT   TO   ASSETS  593 

such  property  it  might  be  necessary  to  make  the  trustees  parties  to 
any  proceedings. 

It  is  common  knowledge  that  this  decision  gave  rise  to  keen  con- 
troversy as  to  whether  the  law  required  amendment.  On  the  one 
hand  it  was  contended  that  the  principle  laid  down  ought  to  remain 
undisturbed,  because  it  simply  imposed  on  the  trade  unions  the 
legal  liability  for  their  actions  which  ought  to  accompany  the  im- 
mense powers  which  the  Trade  Union  Acts  had  set  them  free  to 
exercise.  On  the  other  side  it  was  maintained  that  to  impose  such 
liability  was  to  subject  their  funds,  which  were  held  for  benevolent 
purposes  as  well  as  for  those  of  industrial  battles,  to  undue  risk.  It 
was  said  that  by  reason  of  the  nature  of  their  organization  and  their 
responsibility  in  law  for  the  action  of  a  multitude  of  individuals  who 
would  be  held  in  law  to  be  their  agents,  but  over  whom  it  was  not 
possible  for  them  to  exercise  adequate  control,  they  were,  by  the 
decision  of  this  House,  exposed  to  perils  which  must  cripple  their 
usefulness. 

My  Lords,  we  have  heard,  in  the  course  of  this  case,  suggestions 
as  to  the  merits  of  the  conflicting  points  of  view  and  as  to  the  reason- 
ableness, in  interpreting  the  language  of  Parliament  in  the  Trade  Dis- 
putes Act  of  1906,  of  presuming  that  the  Legislature  was  acting  with 
one  or  other  of  these  points  of  view  in  its  mind.  For  my  own  part, 
I  do  not  propose  to  speculate  on  what  the  motive  of  Parliament  was. 
The  topic  is  one  on  which  judges  cannot  profitably  or  properly 
enter.  Their  province  is  the  very  different  one  of  construing  the 
language  in  which  the  Legislature  has  finally  expressed  its  conclusions, 
and  if  they  undertake  the  other  province  which  belongs  to  those  who, 
in  making  the  laws,  have  to  endeavour  to  interpret  the  desire  of  the 
country,  they  are  in  danger  of  going  astray  in  a  labyrinth  to  the 
character  of  which  they  have  no  sufficient  guide.  In  endeavouring 
to  place  the  proper  interpretation  on  the  sections  of  the  statute  be- 
fore this  House  sitting  in  its  judicial  capacity,  I  propose,  therefore, 
to  exclude  consideration  of  everj^thing  excepting  the  state  of  the 
law  as  it  was  when  the  statute  was  passed,  and  the  light  to  be  got 
by  reading  it  as  a  whole,  before  attempting  to  construe  any  particular 
section.  Subject  to  this  consideration,  I  think  that  the  only  safe 
course  is  to  read  the  language  of  the  statute  in  what  seems  to  be  its 
natural  sense. 

The  first  question  before  us  is  whether  a  trade  union,  if  it  has 
committed  a  tortious  act,  such  as  a  libel,  can  be  sued  for  damages 
at  all,  even  if  the  act  is  not  committed  in  contemplation  or  in  fur- 
therance of  a  trade  dispute.  Before  the  Trade  Disputes  Act  was 
passed  it  undoubtedly  could  have  been  so  sued,  and  the  question  is 
whether  Parliament  has  put  an  end  to  this  liability. 

The  Act  is  confined  to  trade  unions  within  the  definition  of  the 
Trade  Union  Acts  of  1871  and  1876.  The  title  is  "  An  Act  to  provide 
for  the  Regulation  of  Trades  Unions  and  Trade  Disputes."     This 


594  CORPORATE    FEATURES   OF   LABOR   UNIONS  [CHAP.  XI 

appears  to  me  to  indicate  that  the  scope  of  the  statute  was  not  con- 
fined to  the  regulation  of  trade  disputes  merely.  Sec.  1  is  confined 
to  cases  of  trade  disputes  and  amends  the  law  of  conspiracy  in  such 
cases  by  precluding  legal  remedy  unless  the  act  done  would  have 
been  actionable  apart  from  the  circumstances  of  agreement  or  com- 
bination to  do  it.  Sec.  2  is  also  confined  to  cases  of  trade  disputes. 
It  legalizes  what  is  popularly  called  "peaceful  picketing."  Sec.  3 
takes  away  the  actionable  character  of  any  act  done  by  a  person  in 
contemplation  or  furtherance  of  a  trade  dispute  if  the  ground  of 
action  is  only  that  what  was  done  induced  another  person  to  break 
a  contract  of  employment,  or  was  an  interference  with  the  trade, 
business,  or  employment  of  another  person,  or  with  his  right  to  dis- 
pose of  his  capital  or  his  labour  as  he  pleases.  It  will  be  observed 
that  these  three  sections  all  relate  to  trade  disputes,  but  that  none 
of  them  relates  exclusively  to  the  case  of  a  trade  union.  Sec.  4,  sub- 
sec.  1,  the  section  which  has  to  be  construed  in  the  present  appeal, 
does,  however,  relate  exclusively  to  the  case  of  a  trade  union.  It 
enacts  that  an  action  against  such  a  union,  whether  of  workmen  or 
masters,  or  against  any  members  or  officials  of  the  union  on  behalf 
of  themselves  and  all  the  other  members,  in  respect  of  any  tortious 
act  alleged  to  have  been  committed  by  or  on  behalf  of  the  union, 
shall  not  be  entertained  by  any  Court.  I  draw  attention  to  the  fact 
that  this  section  differs  from  the  three  preceding  sections  not  only 
in  relating  exclusively  to  the  case  of  a  trade  union,  but  in  that  sub- 
sec.  1  omits  mention  of  any  restriction  which  would  confine  the  tor- 
tious act  to  one  in  contemplation  or  in  furtherance  of  a  trade  dis- 
pute. Upon  this  point  it  has  been  contended  by  the  learned  counsel 
who  addressed  the  House  for  the  appellants  that  such  a  restriction 
ought  to  be  implied.  It  is  said  that  sec.  5,  which  provides  that  the 
Act  may  be  cited  as  the  Trade  Disputes  Act,  1906,  and  the  scheme 
of  the  first  three  sections,  which  deal  only  with  trade  disputes,  shew 
that  the  Act  is  to  be  interpreted  as  so  confined,  and  that  it  cannot 
be  supposed  that  the  Legislature  intended  to  free  trade  unions  from 
liability  to  the  extent  which  a  literal  reading  of  sec.  4,  sub-sec.  1, 
would  indicate. 

My  Lords,  with  this  contention  I  am  unable  to  agree.  It  is  true 
that  it  is  provided  that  the  Act  may  be  cited  by  the  short  title  of 
the  Trade  Disputes  Act,  1906.  But  the  governing  title  is  that  which 
introduces  the  statute  as  an  Act  to  provide  for  the  regulation  of 
trade  unions  and  trade  disputes.  The  first  three  sections  regulate 
trade  disputes.  The  4th  section  appears  to  me  to  carry  out  the  other 
intention  indicated  by  the  initial  title  by  laying  down  new  law  as 
to  trade  unions.  I  find  no  context  in  the  Act  read  as  a  whole  which 
indicates  an  inUsntion  to  cut  down  the  litc^ral  m(\uiing  of  the  wide 
language  of  sec.  4,  sub-sec.  1.  For  reasons  which  1  have  already 
assigned,  I  think  that  it  would  not  only  be  beyond  the  functions  of 
a  Court  of  justice  to  presume  that  the  Legislature  could  not  when  it 


SECT.  Ill]  LIABILITY   IN   RESPECT   TO   ASSETS  595 

passed  the  Act  have  intended  to  go  as  far  as  the  plain  words  vised 
say,  but  that  if  judges  could  speculate  as  to  its  intentions  they 
would  probably  speculate  wrongly. 

I  pass,  therefore,  to  the  next  point  which  was  made  for  the  ap- 
pellants. This  turns  on  the  effect  of  sub-sec.  2  of  sec.  4,  a  sub-section 
which,  it  is  said,  ought  to  be  read  as  a  proviso  to  sub-sec.  1  restrict- 
ing its  operation.  Sec.  4,  sub-sec.  2,  is  in  these  terms:  "Nothing 
in  this  section  shall  affect  the  liability  of  the  trustees  of  a  trade  union 
to  be  sued  in  the  events  provided  for  by  the  Trade  Union  Act,  1871, 
section  nine,  except  in  respect  of  any  tortious  act  committed  by  or 
on  behalf  of  the  union  in  contemplation  or  furtherance  of  a  trade 
dispute." 

The  Act  of  1871  enables  trade  unions  to  register,  and  provides 
by  sec.  9  that  the  trustees  of  a  registered  trade  union  may  sue  or 
be  sued  as  such  in  cases  concerning  the  property  of  the  trade  union. 
The  Legislature  appears  to  have  desired  to  draw  a  distinction  be- 
tween the  union  and  its  trustees  and  to  preserve  the  liability  of  the 
trustees  under  this  section,  even  in  the  case  of  tortious  acts  com- 
mitted by  the  union,  damages  arising  out  of  which  might,  as  pointed 
out  by  Lord  Lindley  in  his  judgment  in  the  Taff  Vale  Case,  [1901] 
A.  C.  426,  have  been  made  effective  against  property  in  the  hands 
of  the  trustees.  But  a  restriction  is  put  on  the  liability  of  the  trus- 
tees by  excepting  from  it  liability  in  respect  of  a  tortious  act  com- 
mitted by  or  on  behalf  of  the  union  in  contemplation  or  in  further- 
ance of  a  trade  dispute.  Having  regard  to  the  distinction  drawn  in 
the  wording  of  the  statute  between  the  liability  of  the  trade  union 
and  the  liability  of  its  trustees,  I  see  no  justification  for  importing 
the  provision  restricting  liability  enacted  in  the  latter  sub-section 
into  the  words  of  sub-sec.  1,  and  I  think  that  on  the  second  point 
made  the  argument  which  was  addressed  to  us  to  the  effect  that  the 
words  of  exception  in  the  2d  sub-section  must  be  read  as  qualifying 
the  whole  section  cannot  succeed.  .  .  . 

I  therefore  move  that  this  appeal  be  dismissed  with  costs. 

Lord  Macnaghten.  My  Lords,  the  point  raised  by  this  appeal 
is  a  very  short  one  and,  in  my  opinion,  absolutely  clear.  If  I  had 
not  had  the  pleasure  of  listening  to  a  most  ingenious  argument  on 
the  part  of  the  appellants,  I  should  not  have  thought  the  question 
arguable  here  or  anywhere  else  in  the  world.  .  .  . 

Now  there  is  nothing  absurd  in  the  notion  of  an  association  or 
body  enjoying  immunity  from  actions  at  law.  Some  people  may 
think  the  policy  of  the  Act  unwise  and  even  dangerous  to  the  com- 
munity. Some  may  think  it  at  variance  with  principles  which  have 
long  been  held  sacred.  But  a  judicial  tribunal  has  nothing  to  do 
with  the  policy  of  any  Act  which  it  may  be  called  upon  to  interpret. 
That  may  be  a  matter  for  private  judgment.  The  duty  of  the  Court, 
and  its  only  duty,  is  to  expound  the  language  of  the  .Act  in  accord- 
ance with  the  settled  rules  of  construction.     It  is,  I  apprehend,  as 


596  CORPOEATE    FEATURES   OF   LABOR   UNIONS  [CHAP.  XI 

unwise  as  it  is  unprofitable  to  cavil  at  the  policy  of  an  Act  of  Parlia- 
ment, or  to  pass  a  covert  censure  on  the  Legislature.  .  .  . 

I  am  of  opinion  that  the  action  as  against  the  trade  union  was 
incompetent  and  that  the  appeal  should   be  dismissed  with  costs. 
Order  of  the  Court  of  Appeal  affirmed  and  appeal  dismissed 
with  costs} 


Section  4.     Doctrine  of  "  Ultra  Vires^^ 

ABELS  V.  McKEEN 

Court  of  Chancery  of  New  Jersey.     1867 

18  N.  J.  Eq.  462 

The  Chancellor. 

This  suit  is  brought  by  Abels,  Nichuals,  Ross,  Murphy,  Williams, 
Muldoon,  Smoker,  Paul,  and  Curlis,  nine  of  the  contributors  to  a 
fund  raised  by  voluntary  contribution,  to  free  the  north  ward  of  the 
city  of  Camden  from  a  draft,  in  the  late  rebellion.  It  is  brought  for 
themselves,  and  all  of  their  associates,  who  should  come  in  and  con- 
tribute to  the  expenses  of  the  suit.  It  is  brought  against  the  de- 
fendants McKeen  and  Garrison,  to  whom  the  excess  of  the  fund 
raised  by  voluntary  contribution,  above  the  amount  expended  for 
the  purpose  for  which  it  was  raised,  had  been  paid  over  by  Vogel, 
the  paymaster  of  the  association. 

In  February,  1865,  of  the  quota  of  sixty-six  men  allotted  to  the 
north  ward  of  the  city  of  Camden,  on  the  call  of  President  Lincoln, 
made  in  December  previous,  for  three  hundred  thousand  men,  there 
remained  fifty-six  to  be  furnished.  The  quota  had  been  sixty-two, 
and,  according  to  the  regulations,  one  hundred  and  twenty-six  had 
been  drafted  to  supply  the  deficiency.  On  the  twenty-fifth  of  that 
month,  a  meeting  was  called  at  Hill's  tavern,  in  that  ward,  to  raise 
money  for  enlisting  men  to  fill  the  quota,  and  release  the  men  who 
had  been  drafted.  They  organized  themselves  into  a  society,  and 
were  called  "the  drafted  men's  association  of  north  ward."  A  written 
article  was  drawn,  to  be  subscribed,  by  which  the  subscribers  agreed 
to  pay  the  sums  affixed  to  their  names,  for  the  purpose  of  filling  the 
quota  of  north  ward,  in  the  city  of  Camden,  under  tlie  last  draft,  and 
to  exempt  the  drafted  men;  to  be  paid  to  Jesse  Townsend,  treasurer. 
This  was  dated  February  25,  1865,  and  was  signed  by  thirty-one 
persons,  among  whom  were  the  complainants,  Nichuals,  Muldoon, 
Paul,  and  Murphy.  Others  who  did  not  subscribe  to  this  agree- 
ment, contril)uted  to  th(>  funds.  The  contributors  were  one  hundred 
and  eight  in  all,  of  whom  seventy-nine  were  ch-afted  men,  and  twenty- 

1  Compare  Bus.sy  v.  AnuilKUinatcd  Soc.  of  Railway  Servants,  24  T.  L.  R.  437 
(1908)  (p(!rsonal  liability  of  trade  union  official  for  tortious  acts  committed  on 
behalf  of  the  trade  union). 


SECT.  IV]  DOCTRINE    OF    "ULTRA    VIRES"  597 

nine  men  not  drafted.  The  amount  contributed  was  S8423,  of  which 
$7326  was  contributed  by  the  drafted  men,  and  S1097  by  others. 
Of  this  amount,  $3956.96  remained  unexpended  at  the  close  of  the 
war,  after  the  quota  had  been  filled,  and  when  all  danger  of  further 
draft  had  passed.  This  sum  was  paid  by  Vogel,  the  paymaster,  to 
the  defendants. 

The  association  had  its  permanent  president,  treasurer,  and  secre- 
tary, and  held  its  meetings  at  Hill's  tavern,  upon  adjournment, 
and  upon  call,  from  February  twenty-fifth  until  some  time  in  June. 
At  a  meeting  held  on  the  seventh  of  March,  a  resolution  was  passed, 
without  dissent,  that  after  the  number  of  men  necessary  to  clear  the 
contributors  from  that  draft  had  been  procured,  if  there  was  any 
overplus  of  the  fund  unexpended,  it  should  be  paid  into  the  hands 
of  the  defendants,  as  the  nucleus  of  a  fund  to  release  the  ward  from 
any  future  draft;  and  in  case  the  war  should  cease,  and  there  be  no 
further  draft,  it  should  then  be  donated  to  some  charitable  institu- 
tion of  the  city.  On  the  sixth  of  April,  1865,  Vogel,  the  paymaster, 
in  whose  hands  the  surplus  was,  on  the  faith  of  that  resolution  paid 
it  over  to  the  defendants,  taking  their  receipt  annexed  to  a  copy  of 
the  resolution. 

The  defendants  have  appropriated  this  surplus  to  establish  a  city 
dispensary,  which  they  claim  that  they  were  directed  and  authorized 
to  do,  by  a  vote  of  the  association,  at  a  meeting  held  on  the  sixth  of 
April.  The  fact  of  such  vote  is  disputed;  the  evidence  is  conflicting 
on  the  point,  and  the  decided  weight  of  evidence  is  against  the  fact 
that  such  vote  was  had. 

The  complainants  named  in  the  bill,  are  the  only  persons  who 
can  have  the  benefit  of  this  suit.  Whether,  if  any  of  their  associates 
had  offered  to  come  in,  make  themselves  parties,  and  contribute 
to  the  suit,  they  could  have  been  admitted  so  to  do,  it  is  not  neces- 
sary to  decide,  as  none  of  them  have  been  made  parties,  or  applied 
for  that  purpose. 

The  claim  of  the  complainants,  that  the  contributors  to  a  fund 
raised  and  placed  in  the  hands  of  trustees  for  a  specific  purpose, 
have  a  right  to  have  any  surplus  not  needed  for  the  object,  repaid  to 
them  in  proportion  to  their  contributions,  is  a  just  claim,  founded 
in  equity,  and  will  be  enforced  by  this  court. 

The  first  question  is,  what  power  the  meetings  of  the  association 
had  over  this  fund  by  vote  of  the  majority  of  those  present,  and  what 
effect  the  vote  of  March  seventh  had  upon  its  application. 

The  fund,  from  the  manner  of  its  being  raised  and  the  organiza- 
tion of  the  association  previous  to  its  being  raised,  I  think,  was  in- 
tended to  be  placed  in  the  control  of  the  association,  for  the  purposes 
for  which  it  was  raised.  That  association,  being  without  constitu- 
tion or  by-laws,  from  the  necessity  of  the  case  must  be  held  to  have 
power  to  act  at  any  regular  meeting,  by  the  voice  of  a  majority  of 
the  members  present.     If,  at  such  meeting,  the  fund  had  been  dis- 


598  CORPORATE    FEATURES    OF    LABOR   UNIONS  [CHAP.  XI 

posed  of  for  any  purpose  within  the  object  for  which  it  was  raised, 
although  it  was  by  a  bare  majority  of  a  meeting  of  a  minority  of  the 
members,  it  would  be  binding  on  all  the  members.  As  in  all  part- 
nerships or  corporations,  without  articles,  or  charter,  or  by-laws, 
regulating  it,  a  majority  governs;  so,  in  an  association  governed  by 
popular  vote,  in  analogy  to  the  established  rule  at  popular  elections, 
the  control  is  in  the  majority  of  those  who  attend  to  their  dut}^  and 
exercise  their  right;  those  voluntarily  absenting  themselves,  are 
held  as  agreeing  to  the  vote  of  the  majority  of  the  attending  mem- 
bers or  voters. 

But  as  in  partnerships  and  corporations  the  majority  can  only 
govern  within  the  object  for  which  the  partnership  or  corporation 
was  formed;  so  here,  that  vote  must  be  for  some  purpose  for  which 
the  money  was  subscribed  or  contributed.  That  purpose  was  to  free 
the  north  ward  from  draft,  and  the  money  of  no  contributor  could 
be  used  for  any  other  purpose,  without  his  consent.  A  majority 
could  not  devote  the  money  of  the  minority  to  establish  a  city  dis- 
pensary, any  more  than  they  could  have  appropriated  it  to  enlist 
men  for  the  confederate  army.  Ninety-nine  out  of  a  hundred  could 
not  so  apply  the  funds  of  the  remaining  one. 

But  five  of  the  nine  complainants,  to  wit,  Muldoon,  Paul,  Nichuals, 
Murphy,  and  Smoker,  were  present  at  the  meeting  of  March  seventh. 
At  such  a  meeting,  if  a  vote  is  taken,  and  no  one  dissents,  all  who  do 
not  vote  are  considered  as  voting  with  the  majority  for  the  motion. 
And  a  vote  of  three  ayes  at  a  meeting  of  twenty,  where  no  one  dis- 
sents, is  considered  as  the  affirmative  vote  of  all  present.  These 
five  complainants,  having  thus  assented  to  the  payment  of  this 
money  to  the  defendants,  to  he  donated  to  a  charity,  have  voluntarily 
abandoned  all  right  to  recover  it  themselves.  Whether  this  resolu- 
tion gave  to  the  defendants  the  right  to  select  the  charity,  is  another 
question,  which  is  not  raised  in  this  suit. 

But  this  vote  did  not  bind  the  four  other  complainants  who  were 
not  present.  Their  right  to  the  surplus  of  their  contribution  remains. 
The  difficulty  in  the  way  of  their  recovering  is  of  another  kind,  but 
is  founded  on  the  fact  that  they  are  not  bound  by  the  vote  of  March 
seventh.  If  they  had  authorized  their  treasurer,  or  paymaster,  to 
pay  their  money  to  the  defendants,  and  the  defendants  had  ac- 
cepted it  upon  that  vote,  it  would  have  constituted  them  the  agents 
of  these  complainants,  and  given  them  a  right  to  call  upon  the  de- 
fendants to  appropriate  this  money  rightly.  But  as  it  is,  the  defend- 
ants have  no  privity  with  these  complainants.  The  assets  they 
received  were  not  the  property  or  goods  of  these  complainants,  but 
money  or  assets  which  had  never  been  theirs,  handed  ovei-  by  Vogel, 
the  treasurer  of  the  association,  under  a  vote  of  the  association.  If 
any  one  is  accountable  to  them,  it  is  Vogel,  who  handed  over  funds 
without  authority  from  them,  when  he  ought  to  have  accounted  to 
them  for  these  funds.     How  far  Vogel  would  be  protected  by  such 


SECT.  IV]  DOCTRINE    OF    "ULTRA    VIRES"  599 

inference  of  acquiescence  in  the  resolution  of  the  majority  as  might 
be  had  from  their  silence  for  thirty  days,  will  be  settled  if  a  suit  is 
brought  against  him. 

As  against  these  defendants,  the  bill  must  be  dismissed.^ 


AMALGAMATED  SOCIETY  OF  RAILWAY  SERV- 
ANTS V.  OSBORNE 

House  of  Lokds.     1909 
[1910]  A.  C.  87 

This  appeal  raised  the  question  of  the  legality  of  applying  the 
funds  of  a  trade  union  towards  procuring  or  supporting  parlia- 
mentary representation. 

The  Amalgamated  Society  of  Railway  Servants  was  a  trade  union 
established  in  the  year  1872  and  registered  under  the  Trade  Union 
Acts  of  1871  and  1876.  .  .  . 

The  original  rules  contained  no  reference  to  securing  parliamentary 
representation  by  means  of  compulsory  levies  from  the  members, 
but  in  1903  words  were  added  to  the  objects  "to  secure  parliamen- 
tary representation." 

In  1902  a  body  called  the  Labour  Representation  Committee 
was  formed  for  the  purpose  of  establishing  a  distinct  Labour  group 
in  Parliament,  and  to  this  the  society  became  affiliated,  paying  an 
annual  fee  of  10s.  for  each  1000  members. 

In  1903  and  1905  the  rules  of  the  society  were  recast  and  altered, 
with  the  result  that  the  current  rules,  which  came  into  operation  in 
January,  1906,  were,  so  far  as  material  and  with  the  exception  of 
the  words  in  italics,  as  follows:  —  ... 

"Rule  XIII,  Section  IV. 
"Parliamentary  Representation. 

"1.  For  the  maintenance  of  parliamentary  representation  a 
fund  shall  be  established  by  the  society.  The  subscription  to  be 
Is.  Id.  per  year  per  member,  to  be  paid  quarterly,  and  forwarded 
to  the  head  office  with  the  quarter's  dues.  2.  The  objects  of  the 
fund  shall  be  (a)  to  provide  for  representation  of  railwaymen  in 
the  House  of  Commons  as  the  annual  general  meeting  may  from 
time  to  time  determine.  All  candidates  shall  sign  and  accept  the  con- 
ditions of  the  Labour  Party  and  he  subject  to  their  whip,  (b)  To  con- 
tribute to  the  Labour  Representation  Committee  such  sums  as  the 
executive  committee  or  the  annual  general  meeting  may  from  time 
to  time  direct  so  long  as  the  society  remains  affiliated  to  such  com- 
mittee. ...  5.  In  the  event  of  a  candidate  being  selected  for 
a  constituency  his  election  expenses  shall  be  defrayed.  ...  6. 
Should  a  candidate  be  elected  he  shall  be  paid  a  salary  of  250L  a 

1  See  also,  Leatherman  v.  Wolf,  240  Pa.  St.  557,  566.  Compare  Parker  v. 
Oliver,  198  Mass.  488  (authorization  by  a  majority  vote  of  an  ultra  vires  act  in 
absence  of  objection  by  any  donor  of  fund). 


600  COKPORATE    FEATURES    OF    LABOR   UNIONS  [CHAP,  XI 

year  and  third-class  return  fare  to  his  constituency  so  long  as  he 
remains  a  member  of  Parliament.  He  shall  reside  at  such  place  as 
the  executive  committee  or  annual  general  meeting  may  consider 
necessary  for  the  proper  discharge  of  his  duties.  During  the  time 
Parliament  is  not  sitting  his  services  shall  be  at  the  disposal  of  the 
societ}',  as  the  executive  committee  or  general  secretary  may  direct, 
and  be  subject  to  the  conditions  laid  down  for  organizing  secretaries. 
7.  The  executive  committee  shall  make  suitable  provision  for  the  regis- 
tration of  a  constiiuencij  represented  by  a  member  or  members,  who  may 
be  candidates  responsible  to  and  paid  by  this  society."  .  .  . 

The  additions  to  rule  XIII,  section  IV,  2  (a),  and  7,  shown  in 
italics,  were  made  at  the  general  meeting  of  the  society  held  in  Octo- 
ber, 1906,  but  these  additions  were  alleged  to  have  been  irregular, 
as  there  was  no  recommendation  by  the  executive  committee  that 
the  alteration  was  urgently  required  in  the  interest  of  the  society  in 
accordance  with  rule  II,  4  (a). 

The  rules  of  1905,  and  the  partial  alterations  made  as  aforesaid 
in  1906,  had  been  duly  registered  under  the  Trade  Union  Acts,  1871 
and  1876,  and  a  certificate  of  such  registration  had  been  given  by 
the  registrar.  .  .  . 

The  plaintiff,  who  had  been  a  member  of  the  society  for  some 
sixteen  years,  and  was  now  the  secretary  of  the  Walthamstow  branch, 
conmaenced  this  action  against  the  society  and  its  trustees,  and  al- 
leged that  rule  XIII,  sec.  IV,  above  stated,  or,  alternatively,  so 
much  thereof  as  was  partially  altered  in  italics,  and  the  raising  by 
the  society  by  compulsor}'  subscription  from  the  plaintiff  and  other 
members  of  the  society,  and  the  distribution  of  moneys  for  the  pur- 
poses and  in  manner  in  the  said  rule  appearing  were  not  within  the 
objects  or  purposes  of  the  society  or  within  the  purposes  mentioned 
in  sec.  16  of  the  Trade  Union  Act,  1876,  and  were  idtra  vires  the 
society.  .  .  .  The  defendants  did  not  admit  that  any  part  of  rule 
XIII,  sec.  IV,  was  not  within  the  objects  or  purposes  of  the  society, 
or  was  ultra  vires,  and  they  denied  that  there  had  been  any  non- 
compliance with  the  rules.  They  further  contended  that  under 
rule  II,  4  (a),  and  rule  XVIII  the  alteration  in  italics  to  rule  XIII, 
sec.  IV,  had  been  duly  submitted  to  the  annual  general  meeting 
held  in  October,  1906,  and  was  carried  by  large  majorities. 

Neville,  J.,  considering  himself  bound  by  the  decision  in  Steele  v. 
South  Wales  Miners'  Federation,  [1907]  1  K  B.  361,  that  the  provi- 
sion of  a  parliamentary  representation  finid  was  within  the  scope  of  a 
trade  union,  expressed  no  indivi(hial  opinion  upon  this  point,  but 
held  that  the  certificate  of  the  registrar  was  conclusive  as  to  the  rules 
as  amended  that  they  had  been  properly  passed,  and  dismissed  the 
action  with  costs. 

The  plaintiff  appealed.^ 

1  The  statement  of  facts  is  taken  from  the  report  of  the  decision  of  the  Court 
of  Appeal,  [1009]  1  Ch.  163.  —  Ed. 


SECT.  IV]  DOCTRINE    OF    "ULTRA    VIRES"  GOl 

The  Court  of  Appeal  allowed  the  appeal,  [1909]  1  Ch.  163,  Cozens- 
Hardy,  M.  R.,  saying:  "The  appeal  must  be  allowed.  There  must 
be  a  declaration  that  rule  XIII,  section  IV,  is  invalid,  and  that  the 
same  is  not  binding  upon  the  plaintiff  and  other  members  of  the 
society,  and  there  must  be  an  injunction  restraining  the  defendants 
from  levying  from  the  plaintiff  and  other  members  of  the  defendant 
society,  and  from  applying  the  moneys  of  the  society  for  any  of  the 
purposes  mentioned  in  rule  XIII,  section  IV." 

Lord  Atkinson.^  My  Lords,  in  this  case  the  plaintiff  sues  a 
trade  union  society  duly  registered,  of  which  he  has  been  contin- 
uously a  member  since  the  year  1892,  to  have  it  declared  that  rule 
XIII,  sec.  4,  of  its  current  rules,  which  provides,  amongst  other 
things,  for  parliamentary  representation  and  the  enforced  levy  of 
contributions  from  the  plaintiff  and  other  members  of  the  society 
towards  the  payment  of  salaries,  or  maintenance  allowance,  to  mem- 
bers of  Parliament  pledged  to  observe  and  fulfil  the  conditions  im- 
posed by  the  constitution  of  the  Labour  party  therein  referred  to, 
is  ultra  vires  and  void,  and  that  the  society  may  be  restrained  from 
enforcing  it,  and  in  the  alternative  that  it  may  be  declared  that  a 
certain  amendment  or  addition  made  to  the  rules  in  1906  may  be 
declared  to  be  illegal  and  void,  and  for  other  relief. 

The  registered  rules  of  1900  were,  for  the  purpose  of  the  hearing, 
taken  as  the  original  rules  of  the  society,  though  it  had  in  fact  been 
established  in  1871. 

Under  the  provisions  of  the  14th  section  of  the  Trade  Union  Act  of 
1871  and  the  schedule  therein  referred  to,  those  rules  must  have 
provided  for  the  "whole  of  the  objects"  for  which  the  union  was 
established,  "the  purposes  for  which  the  funds  were  to  be  applicable," 
"the  conditions  under  which  any  member  might  become  entitled  to 
the  benefit  assured  thereby,"  and  "the  fines  and  forfeitures  to  be 
imposed  on  any  member." 

It  was  conceded  that  these  rules  of  1900  did  not  contain  any  refer- 
ence whatever  to  parliamentary  representation,  or  to  levies  in  respect 
of  it;  that  in  1903,  for  the  first  time,  there  was  introduced  into  the 
rules,  by  amendment,  the  words  "to  secure  parliamentary  represen- 
tation" to  designate  a  purpose  to  which  funds  might  thereafter  be 
applied;  and  that  in  1906  an  amendment  was  for  the  first  time  in- 
troduced requiring  candidates  for  Parliament  to  sign  and  "  accept 
the  conditions  of  the  Labour  party  and  be  subject  to  their  '  whip.'  " 

As  the  plaintiff  had  become  a  member  of  the  society  long  before 
these  amendments  were  made,  it  is  conceded  that,  if  they  are  illegal 
or  void  as  being  ultra  vires,  he  has  not  contracted  to  be  bound  by 
them,  as  he  might  possibly  be  held  to  have  done  had  they  been 

^  Separate  opinions  were  rendered  by  the  Earl  of  Halsbury,  Lord  Mac- 
naghten.  Lord  James  of  Hereford,  Lord  Atkinson,  and  Lord  Shaw  of  Dunferm- 
line. The  majority  of  the  House  of  Lords,  as  did  the  members  of  the  Court  of 
Appeal,  based  their  decision  on  the  doctrine  of  ^iltra  vires.  —  Ed. 


602  CORPORATE    FEATURES    OF    LABOR    UNIONS  [CHAP.  XI 

made  before  he  became  a  member,  and  that,  therefore,  if  his  ob- 
jection to  the  amendments  be  well  founded,  he  is  within  his  rights 
in  bringing  this  action  and  is  entitled  to  the  main  relief  he  seeks. 
One  question,  called  for  convenience  "the  constitutional  question," 
was  argued  before  j^our  Lordships  which  was  not  argued  before 
Neville,  J.  It  is  not  specifically  raised  on  the  pleadings,  nor,  as  far 
as  appears  from  the  record,  was  it  ever,  until  the  hearing  of  the  ap- 
peal, thought  of  by  the  parties  to  the  suit.  It  is  the  question  whether 
the  members  of  Parliament  who  receive  salaries  or  maintenance 
allowances  and  sign  the  pledge  to  accept  the  conditions  contained 
in  the  constitution  of  the  Labour  party,  referred  to  in  the  rules  of 
1906,  and  to  be  subject  to  their  whip,  have  not  thereby  entered  into 
an  agreement  which  involves  such  a  sacrifice  of  their  independence 
and  liberty  of  thought  and  action  that  it  is  illegal  and  void  as  against 
public  policy.  .  .  . 

The  questions  argued  before  your  Lordships  are  thus  reduced 
to  two  —  first,  whether  or  not  the  rule  complained  of  was  ultra  vires; 
and,  second,  the  so-called  "constitutional  question."  Holding  the 
views  I  am  about  to  express  upon  the  first  question,  it  is  entirely 
unnecessary  for  me  to  express  any  opinion  whatever  upon  the  second, 
and  I  abstain  from  doing  so. 

The  contentions  relied  upon  to  establish  the  validity  of  the  im- 
peached rule  are,  as  I  understand  it,  first,  that  the  definition  con- 
tained in  clause  16  of  the  Trade  Union  Amendment  Act  of  1876  is 
not,  as  it  is  said,  exhaustive,  and  that  therefore  a  trade  union,  though 
registered,  may  have  amongst  its  objects,  in  addition  to  one  or  more 
of  the  objects  named  in  the  section,  any  object  whatever  not  in  it- 
self illegal,  and  accordingly  that,  provided  it  be  created  to  effect 
one  or  more  of  the  objects  named,  it  is  in  other  respects  in  the  same 
position  as  any  individual  or  voluntary  association  of  individuals, 
and  is  therefore  at  liberty  to  expend  its  funds  to  procure  the  return 
of  members  of  Parliament,  and  to  maintain  them  there,  as  freely  as 
an  individual  or  such  an  association  of  individuals  is  to  devote  his 
or  its  moneys  to  a  like  purpose;  and,  second,  that,  even  if  such  a 
union  be  not  free  to  aim  at  all  legal  objects  not  named  in  the  section, 
parliamentary  representation,  on  the  conditions  prescribed  in  the 
rule,  is  the  most  effective  means  of  attaining  the  objects  which  are 
named,  and  may  therefore  be  lawfully  provided  for  in  the  mode 
prescribed. 

The  ground  upon  which  it  is  insisted  that  the  definition  is  not 
exhaustive  is  this.  The  definition,  it  is  said,  contains  no  reference 
to  the  providing  of  benefits  for  memljers,  etc.,  though  it  is  obvious, 
from  the  provision  of  sec.  4  of  the  Act  of  1871  and  of  the  First  Sched- 
ule referred  to  in  tliat  statute,  that  this  was  one  of  the  well-known 
purposes  for  which  trade  unions  were  formed. 

Farw(!ll,  L.  J.,  was  ap[)arently  of  opinion  that  the  provision  of 
such  benefits  is  covered  by  the  words  in  the  definition,  "regulating 


SECT.  IV]  DOCTRINE    OF    "ULTRA    VIRES"  603 

the  relations  between  workmen  and  workmen";  but,  whether  that 
be  so  or  not,  the  providing  of  benefits  was  a  well-known  and  well- 
recognized  purpose  of  trade  unions  long  before  any  legislation  deal- 
ing with  them  was  passed.  It  is  undoubtedly  a  purpose  collateral 
or  ancillary  to  the  purposes  with  wliich  the  section  is  conversant; 
and  to  argue  that  because  of  the  omission  from  this  section  of  a  well- 
known  object  of  this  kind  therefore  all  objects  not  named,  however 
foreign  they  may  be  to  those  objects  at  which  the  history  of  these 
bodies  shews  they  aimed,  may  legitimately  be  promoted  is  the  most 
obvious  non  sequilur. 

Sir  George  Jessel  in  Rigby  t'.  Connol,  (1880)  14  Ch.  D.at  p.  489,  ana- 
lysed the  legislation  passed  to  deal  with  trade  unions  and  described  its 
purpose  and  effect.  Farwell,L.  J.,in  his  judgment  in  this  case  described 
with  accuracy  and  fulness  their  present  position,  their  rights  and  priv- 
ileges. From  these  judgments  it  is  clear,  in  my  view,  that  they  are, 
when  registered,  quasi-corporations,  resembling  much  more  closely 
railway  companies  incorporated  by  statute  than  voluntary  associations 
of  individuals  merely  bound  together  by  contract  or  agreement,  express 
or  implied.  And  it  is  plain  that,  as  soon  as  this  character  was  given  to 
them,  and  the  rights  and  privileges  they  now  enjoy  were  conferred 
upon  them,  it  became  a  matter  of  necessity  to  define  the  purposes  and 
objects  to  which  they  were  at  liberty  to  devote  the  funds  raised  from 
their  members  by  enforced  contributions.  A  definition  which  per- 
mitted them  to  do  the  particular  things  named  and  in  addition  all 
things  not  in  themselves  illegal  would  be  no  definition  at  all  and  would 
serve  no  purpose  at  all.  There  must  be  some  limit.  The  question 
for  decision,  therefore,  is  whether  parliamentary  representation  falls 
within  or  without  that  limit,  or,  in  other  words,  whether  the  Legis- 
lature, expressly  or  by  fair  implication,  has  conferred  upon  registered 
trade  unions  power  and  authority  to  subsidize,  in  the  manner  pro- 
vided by  the  impeached  rule  a  scheme  of  parliamentary  representa- 
tion. .  .  . 

It  is  not  suggested  that  registered  trade  unions  have  the  powers 
of  common  law  corporations.  .  .  .  Now  it  is  not  contended  that  it 
is  a  matter  of  necessity  for  registered  trade  unions  to  secure  parlia- 
mentary representation  on  the  lines  indicated  in  this  rule,  or  on  any 
other  lines.  Their  whole  history  refutes  such  a  suggestion.  But  it 
is  contended  that  it  is  only  fair  to  imply  that  they  have  this  power, 
because  such  a  representation  would  afford  the  most  effective  means 
of  accomplishing  the  objects  mentioned  in  sec.  16,  inasmuch  as 
legislation  might  be  introduced  to  help  or  hinder  them  in  the  pros- 
ecution of  those  objects,  and  that  it  is  vital  to  their  interests  to 
have  in  Parliament  members  in  sympathy  with  their  views  to  sup- 
port the  one  form  of  legislation  and  to  oppose  the  other;  and,  fur- 
ther, that  they  cannot  procure  the  return  of  such  members  unless 
they  pay  out  of  their  funds  the  election  expenses  of  chosen  candidates 
and  by  the  same  means  maintain  them  if  returned  to  Parliament. 


604  CORPORATE    FEATURES   OF   LABOR   UNIONS  [CHAP.  XI 

The  answer  to  that  argument  is,  I  think,  this.  Trade  unions  are 
in  this  respect  in  precisely  the  same  position  as  all  corporations, 
municipal  or  commercial,  including  in  the  latter  all  limited  liability 
companies  created  under  the  Act  of  1862.  These  bodies,  like  the 
trade  unions,  may  by  legislation  be  helped  or  hindered  in  carrying 
out  the  objects  which  they  were  formed  to  carry  out.  Their  most 
vital  interest  may  be  seriously  prejudiced  by  taxation  which  the 
Legislature  may  impose,  or  enabling  statutes,  general  in  character, 
may  be  introduced  calculated  to  enlarge  their  powers,  increase  their 
privileges,  or  remove  restraints  upon  their  action,  or  against  some 
of  them  may  be  under  the  necessity  of  promoting  private  Bills  to 
meet  their  own  special  needs.  If,  despite  all  this,  the  intention  never 
has  been  and  cannot  be  imputed  to  the  Legislature  to  confer  upon 
such  corporations  as  these  power  or  authority  to  devote  their  funds 
to  the  procurement  of  parliamentary  representation  in  the  manner 
in  this  case  contended  for,  how  can  such  an  intention  be  imputed  to 
it  in  the  case  of  quasi-corporations  such  as  registered  trade  unions.'^ 
And  if  this  intention  cannot  be  imputed  to  the  Legislature  in  the 
case  of  registered  trade  unions,  as  in  my  view  it  cannot  be,  there 
can  be  no  such  thing  as  an  implied  grant  of  the  desired  powers,  be- 
cause an  addition  to  a  grant  is  only  introduced  by  implication  in 
order  to  carry  out  the  presumed  intention  of  the  grantor.  .  .  . 

It  is  not  disputed  that  up  to  1903,  at  all  events,  members  of  trade 
unions  were  not  on  joining  required  to  subscribe  to  any  political 
creed,  or  submit  to  any  political  test,  no  more  than  are  persons  who 
become  shareholders  in  a  railway  company,  and,  for  all  that  appears, 
there  may  be  as  great  a  diversity  of  political  views  amongst  the  mem- 
bers of  the  one  class  as  of  the  other.  Freedom  of  opinion  was  probably 
permitted  amongst  the  members  of  both  classes  because  it  was  not 
the  business  of  either  of  the  bodies  to  which  they  respectively  be- 
longed to  support  particular  political  parties  or  to  promote  a  partic- 
ular political  policy.  It  would  be  as  unjust  and  oppressive  as,  in 
my  view,  it  is  illegal  to  compel,  by  passing  rules  such  as  that  im- 
peached, a  member  of  a  trade  union,  who  like  the  respondent  joined 
in  the  days  when  freedom  of  action  was  permitted,  either  to  con- 
tribute to  the  promotion  of  a  political  policy  of  which  he  might 
possibly  disapprove,  or  be  expelled  from  the  union  to  which  he  be- 
longed for  so  many  years  and  forfeit  all  benefit  from  the  money  he 
had  subscribed. 

I  am  therefore  of  opinion  that  power  and  authority  such  as  are 
in  this  case  claimed  for  the  appellants  have  not  been  conferred  upon 
them  expressly  or  by  implication;  that  the  impeached  rule  is  ultra 
vires;  that  the  decision  app(!aled  from  was  on  tills  point  right  and 
should  be  upheld,  and  the  appeal  dismissed  with  costs.  For  the 
reasons  already  given  I  express  no  opinion  on  the  other  question  so 
elaborately  argued  before  your  Lordships  by  Mr.  Spencer  Bower. 


SECT.  IV]  DOCTRINE    OF    "ULTRA    VIRES"  605 

Lord  James  of  Hereford.  My  Lords,  after  much  considera- 
tion I  have  come  to  the  conclusion  that  your  Lordships'  judgment 
should  be  given  in  favour  of  the  respondent.  But  I  desire  to  explain 
that  the  opinion  I  thus  express  is  founded  upon  one  particular  fact 
existing  in  the  case. 

With  much  of  the  argument  adopted  by  counsel  at  the  bar  on 
behalf  of  the  appellants  I  agree.  For  instance,  I  think  it  may  well 
be  in  the  interests  of  trade  unionism  and  labour  that  the  funds  of 
a  trade  union  should  be  devoted  to  the  payment  of  the  expenses  of 
a  member  of  Parliament,  who  should  represent  such  interests. 

I  also  concur  in  the  view  presented  to  your  Lordships  by  Sir  Robert 
Finlay,  that  sec.  16  of  the  Act  of  1876  is  not  a  clause  of  limitation, 
or  exhaustive  definition.  It  seems  to  me  that  the  Legislature  only 
intended  to  require  certain  qualifications  to  exist  before  an  entity 
could  become  a  trade  union,  but  the  objects  or  limits  of  action  of  a 
properly  qualified  trade  union  are  not  dealt  with  by  the  section. 

So  far  I  am  in  agreement  with  the  case  presented  by  the  appellants. 
But  my  difficulty  in  the  way  of  complete  concurrence  arises  in  con- 
sequence of  the  terms  of  rule  XIII,  sec.  4,  as  amended  in  October, 
1906:  "All  candidates  shall  sign  and  accept  the  conditions  of  the 
Labour  party  and  be  subject  to  their  '  whip.'  " 

The  effect  of  this  rule  and  others  that  exist  is  that  a  member  of 
the  trade  union  is  compelled  to  contribute  to  the  support  of  a  mem- 
ber of  Parliament,  who  is  compelled  "to  answer  the  whip  of  the 
Labour  party."  I  construe  this  condition  as  meaning  that  the  mem- 
ber undertakes  to  forego  his  own  judgment,  and  to  vote  in  Parlia- 
ment in  accordance  with  the  opinions  of  some  person  or  persons 
acting  on  behalf  of  the  Labour  party.  And  such  vote  would  have 
to  be  given  in  respect  of  all  matters,  including  those  of  a  most  gen- 
eral character,  such  as  confidence  in  a  Ministry  or  the  policy  of  a 
Budget  —  matters  unconnected,  directly  at  least,  with  the  interests 
of  labour.  Therefore  I  am  of  opinion  that  the  application  of  money 
to  the  maintenance  of  a  member  whose  action  is  so  regulated  is  not 
within  the  powers  of  a  trade  union. 

If  your  Lordships  decide  on  this  branch  of  the  case  that  the  re- 
spondent is  entitbd  to  judgment,  it  is  unnecessary  that  any  opinion 
should  be  expressed  upon  the  very  broad  constitutional  question 
raised  for  the  first  time  in  the  Court  of  Appeal  affecting  the  general 
support  of  members,  and  upon  which  the  President  of  the  Court, 
the  Master  of  the  Rolls,  has  given  no  judgment.  However,  I  desire 
to  add  that  my  silence  upon  this  question  of  the  judgment  of  the  two 
Lords  Justices  must  not  be  regarded  as  denoting  agreement  with  it. 

Lord  Shaw  of  Dunfermline.  .  .  .  There  were  two  arguments 
presented.  (1)  The  expenditure  of  the  society's  members'  con- 
tributions in  paying  members  of  Parliament,  whether  the  payments 
be  part  of  an  illegal  or  unconstitutional  compact  or  not,  is  not  in 


606  CORPORATE    FEATURES    OF    LABOR   UNIONS  [CHAP.  XI 

fact  authorised  by  the  terms  of  association.  (2)  The  payment  in 
respect  of  which  the  contributions  are  enforced,  whether  such  pay- 
ment be  authorised  by  the  terms  of  the  association  or  not,  is  part  of 
a  compact  which  in  its  nature  is  illegal  or  unconstitutional. 

Under  the  first  argument,  if  the  contravention  of  the  terms  of 
association  be  affirmed,  the  constitutional  question  is  superseded. 
Under  the  second  argument,  if  essential  illegalit}'-  be  affirmed  the 
consideration  of  the  terms  of  association  is  unnecessary. 

My  Lords,  in  the  Court  of  Appeal  the  learned  Master  of  the  Rolls 
decided  only  the  first  and  the  learned  Lords  Justices  Fletcher  Moul- 
ton  and  Farwell  decided  both  of  those  questions.  I  should  have  been 
very  glad  if  your  Lordships  had  also  seen  your  way  to  adopt  the 
latter  course.  But  I  quite  agree  that,  strictly  considered,  the  one 
question  saves  the  other.  As  so  often  happens  with  propositions  so 
related,  the  selection  between  them  is  not  governed  by  any  canon  of 
logic,  but  is  optional. 

Your  Lordships'  choice  has  fallen  on  the  point  as  to  the  rules  and 
objects  of  the  society,  which  I  gather  that  you  hold  did  not  embrace 
the  payment  of  members  of  Parliament.  My  Lords,  I  cannot  say 
that  I  am  entirely  clear  in  my  own  mind  upon  that  topic.  I  do  not 
dissent,  but  I  do  not  decide.  Long  before  the  statutes  of  1871  and 
1876  were  enacted  trade  unions  were  things  in  being,  the  general 
features  of  which  were  familiar  to  the  public  mind.  They  were 
associations  of  men  bound  together  by  common  interests  for  com- 
mon ends.  Statute  did  not  set  them  up,  and,  speaking  for  mj^self, 
I  have  some  hesitation  in  so  construing  language  of  statutory  recog- 
nition as  a  definition  imposing  such  hard  and  fast  restrictive  limits 
as  would  cramp  the  development  and  energies  and  destroy  the 
natural  movements  of  the  living  organism.  It  is  in  that  region  that 
my  doubts  lie.  I  fully  recognise  that  the  introduction  of  matter 
either  foreign  to  or  subversive  of  the  society's  objects  is  not  permis- 
sible ;  but  I  am  not  clear  that  the  payment  of  members  of  Parliament 
by  associations  whose  objects  embrace  the  regulation  of  hours  and 
conditions  of  labour  and  of  the  relations  of  the  employers  and  work- 
men is  such  foreign  or  subversive  matter;  and,  speaking  for  myself, 
I  do  not  think  that  the  problem  is  solved  by  designating  the  new 
matter  political  and  holding  that  for  that  reason  it  is  differentiated 
from  the  old. 

It  is  in  these  circumstances,  my  Lords,  that  I  find  myself  com- 
pelled to  consider  this  appeal  upon  the  other  ground  taken.  .  .  . 

In  brief,  my  opinion  accordingly  is:  The  proposed  additional 
rule  of  the  society  that  "all  candidates  shall  sign  and  respect  the 
conditions  of  the  Labour  party,  and  be  subject  to  their  '  whip,'  " 
the  rule  that  candidates  are  to  be  "responsible  to  and  paid  by  the 
society,"  and,  in  particular,  the  provision  in  the  constitution  of  the 
Labour  party  that  "candidates  and  members  must  accept  this  con- 
stitution, and  agree  to  abide  by  the  decision  of  the  parliamentary 


SECT.  IV]  DOCTRINE    OF    "ULTRA    VIRES"  607 

party  in  carrying  out  the  aims  of  this  constitution,"  are  all  fun- 
damentally illegal,  because  they  are  in  violation  of  that  sound  public 
policy  which  is  essential  to  the  working  of  representative  govern- 
ment. 

Parliament  is  summoned  by  the  Sovereign  to  advise  His  Majesty 
freely.  By  the  nature  of  the  case  it  is  implied  that  coercion,  con- 
straint, or  a  money  payment,  which  is  the  price  of  voting  at  the  bid- 
ding of  others,  destroys  or  imperils  that  function  of  freedom  of 
advice  which  is  fundamental  in  the  very  constitution  of  Parliament. 
Inter  alia,  the  Labour  party  pledge  is  such  a  price,  with  its  accom- 
paniments of  unconstitutional  and  illegal  constraint  or  temptation.  .  .  . 

For  these  reasons,  my  Lords,  I  am  of  opinion  that  the  appeal 
should  be  refused. 

Order  of  the  Court  of  Appeal  affirmed  and  appeal  dis- 
missed with  costs} 

1  Accord:  Parr  v.  Lancashire  &  Cheshire  Miners'  Fed.,  [1913]  1  Ch.  366.  In 
Wilson  V.  Scottish  Typographical  Association,  [1911]  1  Scot.  L.  T.  253,  255,  Lord 
Skerrington  sought  to  limit  the  effect  of  the  Osborne  decision.  The  majority  of 
the  Lords  who  gave  judgment  in  the  Osborne  case,  he  said,  "held  that  the  new 
political  purposes  of  the  Society  were  matters  outside  the  purview  of  the  Trade 
Union  Acts,  and  therefore  ultra  vires  of  the  Society.  It  is  apparent  that  this 
ground  of  judgment  has  no  application  to  a  society,  which  has  no  statutory  con- 
stitution, and  which  is  merely  a  voluntary  association,  such  as  an  unregistered 
trade  union." 

For  a  criticism  of  the  Osborne  judgment,  see  Webb,  History  of  Trade  Unionism 
(1920  ed.),  pp.  608-631.  The  widespread  dissatisfaction  caused  by  the  Osborne 
judgment  led  to  the  passage  of,  the  Trade  Union  Act  of  1913  (see  supra,  p.  25). 

"It  is  not  easy  to  sum  up  the  whole  effect  of  the  legal  assaults  upon  Trade 
Unionism  between  1901  and  1913.  Politically,  the  result  was  to  exasperate  the 
active-minded  workmen,  and  greatly  to  promote,  though  with  some  delay,  the 
growth  of  an  independent  Labour  Party  in  the  House  of  Commons.  .  .  .  The 
final  result  of  the  successive  attempts  between  1901  and  1913  to  cripple  Trade 
Unionism  by  legal  proceedings  was  to  give  it  the  firmest  possible  basis  in  statute 
law."    Webb,  History  of  Trade  Unionism  (1920  ed.),  pp.  632,  633-634. 


CHAPTER  XII 

RIGHTS  AND  LIABILITIES  OF  MEMBERS  OF  LABOR 
UNIONS  IN  RESPECT  TO   THIRD  PARTIES 

Section  1.     Officers  and  Agents 

WINONA  LUMBER  CO.  v.  CHURCH 

Supreme  Court  of  South  Dakota.     1895 

6  S.  D.  498 

Kellam,  J.  The  complaint  of  the  appellant,  who  was  plaintiff 
in  the  court  below,  after  alleging  its  incorporation,  as  its  cause  of 
action  against  respondents  as  defendants  alleged  as  follows:  "Stcond, 
that  upon  the  1st  day  of  June,  1889,  certain  persons  of  the  city  of 
Watertown,  South  Dakota,  met  together  and  organized  a  voluntary, 
unincorporated  association  under  the  name  of  the  Watertown  Trot- 
ting Association,  with  the  following  persons  as  officers  thereof: 
The  defendant  Charles  G.  Church  as  the  president;  the  defendant 
J.  E.  Kelley  as  the  vice-president;  the  defendant  Ole  Gesley  as  the 
treasurer,  and  the  defendant  A.  L.  Buell  as  the  secretary.  That  said 
unincorporated  association  continued  in  existence  until  some  time 
after  the  1st  day  of  August,  1890,  without  any  change  whatever 
being  made  as  to  the  persons  who  acted  as  the  officers  of  the  said 
association.  That  the  defendants  herein,  and  each  of  them,  from 
the  time  the  said  Watertown  Trotting  Association  was  organized 
until  the  1st  day  of  August,  1890,  were  members  of  the  said  associa- 
tion, and  took  an  active  and  aggressive  part  in  the  management  and 
control  of  its  affairs.  Third,  That  during  the  months  of  JUne  and 
July  in  the  year  1890  the  plaintiff,  at  the  instance  and  request  of  the 
said  association  known  as  the  Watertown  Trotting  Association,  and 
with  the  knowledge  and  sanction  of  each  of  the  defendants  herein, 
furnished,  sold,  and  delivered  to  the  said  unincorporated  association 
certain  lumber  and  building  materials,  which  were  used  in  the  con- 
struction of  buildings  and  structures  used  by  the  said  Watertown 
Trotting  Association.  Fourth,  That  the  lumber  and  building  ma- 
terial so  furnished  by  the  plaintiff  to  the  said  Watertown  Trotting 
Association  were  of  the  value  of  $333.70,  and  the  last  of  the  said 
lumb(!r  and  building  material  was  furnished  and  delivered  upon 
the  10th  day  of  July,  1890.  Fifth,  The  i)laintilf  furtiier  alleges  that 
the  lumber  and  building  material  furnislied,  sold,  and  delivered  as 
herein   set  forth  wen;    furnished,  sold,  and    delivered  upon  the  in- 

608 


SECT.  I]  OFFICERS    AND    AGENTS  609 

dividual  responsibility  of  the  defendants  herein  named,  and  that 
the  plaintiff,  in  furnishing,  selling,  and  delivering  the  said  lumber 
and  building  material,  relied  solely  upon  the  said  defendants  for  the 
payment  of  the  purchase  price  thereof;  and  that  the  purchase  price 
of  the  same,  or  any  part  thereof,  has  not  been  paid."  The  defend- 
ants, except  Buell,  who  has  removed  from  the  state,  and  was  not 
served,  answered  separately,  denying  the  allegations  of  the  com- 
plaint. Upon  the  trial  the  court  sustained  an  objection  to  the  in- 
troduction of  any  evidence  by  plaintiff,  on  the  ground  that  the 
complaint  did  not  state  a  cause  of  action,  and  on  motion  rendered 
judgment  against  plaintiff,  dismissing  the  action.  From  this  judg- 
ment plaintiff  appeals.  The  single  question  therefore  is,  do  the  facts 
stated  in  the  complaint  constitute  a  cause  of  action  against  these 
defendants? 

While  there  are  a  good  many  reported  cases  presenting  facts 
analogous  to  this,  the  courts  do  not  seem  to  have  adopted  the  same 
view  as  to  the  relation  of  the  individual  members  of  an  unincorporated 
association  to  each  other.  In  many  cases  the  members  of  such  an 
association  have  been  held  to  be  partners,  and  liable  as  such.  See 
Gorman  v.  Russell,  14  Cal.  531;  Babb  v.  Reed,  5  Rawle,  158;  Taft 
V.  Ward,  106  Mass.  518;  Lynch  v.  Postlethwaite  (La.),  12  Am.  Dec. 
495.  In  other  cases,  Hke  Ash  v.  Guie,  97  Pa.  St.  493;  Lewis  v.  Tilton, 
64  Iowa,  220,  19  N.  W.  911,—  it  has  been  held  that  members  of  such 
an  association  are  not  partners.  A  decision  of  this  case  does  not  seem 
to  us  to  require  the  express  adoption  of  either  of  these  views.  The 
complaint  shows  that  these  defendants  were  the  general  officers  of 
an  unincorporated  association,  under  the  name  of  the  Watertown 
Trotting  Association.  Its  purpose  and  object  is  disclosed  only  as 
suggested  by  its  name.  It  is  further  stated  that  with  the  knowl- 
edge, approval,  and  sanction  of  these  defendants,  as  its  general 
managing  officers,  the  association  purchased  the  materials  named  in 
the  complaint  from  the  plaintiff,  and  that  such  materials  were  used 
in  the  construction  of  buildings  for  such  association.  The  associa- 
tion itself  was  the  nominal  or  theoretical  principal,  of  which  these 
defendants  were  the  officers  and  agents,  but  the  nominal  principal 
had  no  legal  existence.  As  said  by  Judge  Seevers  in  Lewis  v.  Tilton, 
supra,  it  was  a  myth.  The  members  of  the  association,  as  a  matter 
of  convenience,  transacted  their  business  connected  with  this  enter- 
prise under  an  assumed  associate  name.  The  acts  of  the  association, 
it  not  being  a  legally  responsible  body,  were  the  acts  of  its  members, 
who  instigated  and  sanctioned  the  same.  They  made  the  purchase 
in  the  name  of  a  fictitious  principal.  As  a  matter  of  law,  the  plain- 
tiff, in  giving  credit  to  the  associate  name,  gave  credit  to  the  parties 
who  adopted  and  operated  under  such  name.  To  hold  otherwise 
would  defeat  the  plain  requirement  of  justice.  It  is  not  sought  in 
this  case  to  impose  liability  upon  any  except  those  who  were  actively 
responsible  for  the  purchase.     Possibly  others  besides  those  named 


610  LIABILITIES   OF   LABOR   UNION   MEMBERS       [CHAP.  XII 

as  defendants  may  also  be  liable  in  this  case,  but  there  is  nothing  in 
the  complaint  so  showing.  It  does  appear  that  the  defendants 
named  instigated  and  sanctioned  the  purchase,  and  they  are  liable 
on  the  ground  that  one  who,  as  agent,  assumes  to  represent  a  prin- 
cipal who  has  no  legal  existence  or  status,  is  himself  liable.  Mechem, 
Ag.  sec.  557.  The  principal  which  seems  to  us  controlling  in  this 
case  is  tersely  stated  in  Lewis  v.  Tilton,  supra:  "But  it  is  said  these 
defendants  did  not  contract.  They  certainly  represented  that  they 
had  a  principal  for  whom  they  had  authority  to  contract.  They,  for 
and  in  behalf  of  an  alleged  principal,  contracted  that  such  principal 
would  do  and  perform  certain  things.  As  we  have  said,  there  is  no 
principal,  and  it  seems  to  us  the  defendants  should  be  held  liable, 
and  that  it  is  immaterial  whether  they  be  held  liable  because  they 
held  themselves  out  as  agents  for  a  principal  that  had  no  existence 
or  on  the  ground  that  they  must,  under  the  contract,  be  regarded 
as  principals,  for  the  simple  reason  that  there  is  no  other  principal 
in  existence."  That  members  of  an  unincorporated  association, 
having  no  legal  status,  are  personally  liable,  independent  of  the 
question  of  partnership,  on  contracts  which  they  have  assented  to 
or  assisted  to  make  in  its  name,  is  fully  declared  in  Lewis  v.  Tilton, 
supra;  Davison  v.  Holden,  55  Conn.  103,  10  Atl.  515;  Herod  v. 
Rodman,  16  Ind.  241;  Ash  v.  Guie,  supra;  Heath  v.  Goslin,  80  Mo. 
310.  The  same  doctrine  was  distinctly  recognized,  though  not  so 
definitely  stated,  and  applied  in  Ray  v.  Powers,  134  Mass.  22;  Sizer 
V.  Daniels,  66  Barb.  432;  Fredendall  v.  Taylor,  23  Wis.  538,  and 
again  in  26  Wis.  286.  Tested  by  these  views,  we  are  of  the  opinion 
that  the  court  erred  in  holding  that  the  complaint  did  not  state 
a  cause  of  action  against  the  defendants,  and  for  such  error  the  judg- 
ment is  reversed,  and  the  case  remanded  for  further  proceedings 
according  to  law.     All  the  judges  concur.^ 


BLAKELY  v.  BENNECKE 
Supreme  Court  of  Missouri.     1875 
59  Mo.  193 
Sherwood,  J.,  delivered  the  opinion  of  the  court. 
Action  on  an  instrument  in  this  form: 
$500.  Head  Qrs.  U.  S.  Forces, 

Brunswick,  Mo.,  January  3,  1865. 
Received  of  Mrs.   Catherine  Blakcly  the    sum  of  five  hundred 
dollars,  $500,  to  be  used  to  buy  Spencer  Rifles,  for  Co.  I.,  49th  Regt., 
Mo.  Vols. ;  said  money  to  be  returned  as  soon  as  the  County  bounty 
is  paid  to  said  Company  in  full  without  interest. 

Louis  Bennecke, 
Capt.  49th  Regt.,  Mo.  Vols.,  Com'd'g  Post. 

»  Accord:  Crawley  v.  American  Society  of  Equity,  153  Wis.  13. 


SECT.  I]  OFFICERS   AND    AGENTS  611 

The  suit  was  brought  by  the  husband  of  Mrs.  Blakely. 
There  were  four  counts  in  the  petition;  the  first  charged  that 
plaintiff's  wife,  acting  as  his  agent,  on  the  3d  day  of  January,  1865, 
loaned  the  defendant  the  sum  mentioned,  which  he,  by  the  instru- 
ment referred  to,  promised  to  return,  etc.,  without  interest,  so  soon 
as  the  county  bounty  should  be  paid  as  therein  specified;  that  such 
payment  was  made  on  the  1st  day  of  March,  1866,  but  the  money 
borrowed  was  not  returned,  and  judgment  was  asked  with  interest 
from  the  period  last  stated.  The  second  count  was  for  money  loaned 
to  defendant,  and  was  like  the  first  as  to  amount  and  time  of  loan, 
except  that  no  instrument  was  declared  on,  nor  time  of  payment 
designated.  The  third  count  was  for  money  had  and  received;  and 
otherwise  was  like  the  second.  The  fourth  count  was  for  the  above 
mentioned  sum;  and  charged  that  the  same  was  obtained  of  the 
wife  of  plaintiff  by  duress,  etc.  To  this  last  count  a  demurrer  was 
sustained. 

The  defendant  then  answered  to  the  remaining  counts,  admitting 
the  execution  of  the  instrument  sued  on,  but  denied  that  it  was 
signed  in  his  individual  capacity;  and  stated  that  it  was  only  exe- 
cuted by  him  as  the  agent  of  the  company  of  which  he  was  captain, 
and  alleged  that  such  agency  was  disclosed  as  well  as  the  name  of 
his  principal,  the  said  company,  at  and  before  receiving  the  money, 
etc.  Neither  the  agency  of  Mrs.  Blakely  nor  the  payment  of  the 
county  bounty  on  the  1st  day  of  March,  1866,  was  denied.  There 
was  a  general  denial  on  the  other  counts. 

A  reply  was  filed,  and  the  parties  went  to  trial,  upon  the  first 
count  in  the  petition;  and  the  plaintiff,  after  reading  the  instru- 
ment sued  on  in  evidence,  without  objection,  and  after  proving  by 
Mrs.  Blakely  that  she  was  his  wife,  and  that  the  money  loaned  be- 
longed to  him,  rested. 

A  great  deal  of  testimony  was  then  introduced  by  the  defendant, 
tending  to  show  that  he  borrowed  the  money  as  the  agent  of  and 
for  the  company,  and  not  in  any  other  capacity.  Plaintiff  in  his 
turn  also  produced  a  large  amount  of  testimony  of  a  contrary  tenor 
and  effect.  The  jury  after  being  abundantly  instructed,  as  well  on 
the  part  of  defendant  as  of  the  plaintiff,  found  for  the  latter. 

The  defendant,  by  admitting  the  execution  of  the  ingtrument  in 
suit,  and  failing  to  deny  that  the  county  bounty  had  been  paid,  fixed 
his  liability,  and  offered  no  barrier  to  plaintiff's  recovery,  as  the  in- 
strument was  not  at  all  ambiguous,  was  couched  in  plain  terms,  and 
therefore  offered  no  opportunity  for  the  introduction  of  parol  testi- 
mony as  explanatory  of  the  intent  and  meaning  of  the  parties,  and 
all  contemporaneous  verbal  agreements  were  merged  in  that  writing. 
But  even  had  this  not  been  the  case,  it  is  not  seen  how  the  privilege 
of  introducing  parol  testimony  for  the  purpose  of  varying  the  terms 
of  the  instrument,  would  have  helped  the  defendant.  He  was  per- 
sonally chargeable  even  on  his  own  showing,  with  the  amount  bor- 


612  LIABILITIES   OF   LABOR   UNION   MEMBERS        [CHAP.  XII 

rowed,  and  six  per  cent  interest  from  the  first  day  of  March,  1866, 
unless  he  had  disclosed  a  responsible  principal.  (2  Kent.  Com.,  630.) 
But  in  this  case  there  was  no  principal,  either  responsible,  or  other- 
wise, to  disclose.  "Companj'  I"  was  incapable  of  suing  or  being 
sued,  pleading  or  being  impleaded,  contracting  or  being  contracted 
with.  In  short,  it  possessed  none  of  the  elements  or  attributes  of  a 
legal  entity.  The  defendant  was  clearly  liable  on  the  instrument 
itself  when  coupled  with  his  admission  of  the  happening  of  the  con- 
tingency therein  referred  to.  And  it  was  the  duty  of  the  court  to 
have  declared  the  legal  effect  to  be  given  to  the  instrument. 

The  motion  in  arrest  was  properly  overruled.  Although  there 
were  several  counts  in  the  petition,  yet  all  but  the  first  were  aban- 
doned at  the  trial,  so  that  the  finding,  however  general,  could  have 
reference  to  but  that  one. 

The  case  was  tried  on  the  wrong  theory;  as  the  judgment,  however, 
was  for  the  right  party,  it  will  be  affirmed;   all  the  judges  concur.^ 


Section  2.     Members 

CoLLYER,  Law  of  Partnership.^  Societies  and  clubs,  the  object 
of  which  is  not  to  share  profits,  are  not  partnerships  in  any  sense.  .  .  . 
It  is  a  mere  abuse  of  words  to  call  such  associations  partnerships; 
and  if  liabilities  are  to  be  fastened  on  any  of  their  members  it  must 
be  by  reason  of  the  acts  of  those  members  themselves,  or  bj^  reason 
of  the  acts  of  their  agents;  and  the  agency  must  be  made  out  by  him 
who  relies  on  it,  for  none  is  implied  by  the  mere  act  of  association. 

EHRLICH  V.  WILLENSKI 

United  States  Circuit  Court.    E.  D.  Pennsylvania.    1905 

138  Fed.  425 

J.  B.  McPherson,  District  Judge.  Whatever  relaxation  of  the 
rule  that  requires  all  persons  interested  to  be  made  parties  to  a  suit 
at  law  may  have  been  permitted  in  the  case  of  unincorporated  socie- 

1  Accord:   Caldicott  v.  Griffiths,  8  Exch.  898,  903;  Osborne  v.  Dickey,  71  S.  E. 
(Ga.)  763;  Lewis  v.  Tilton,  64  la.  220;  Comfort ;;.  Graham,  87  la.  295,  298;  Riffe 
V.  Proctor,  99  Mo.  App.  601,  608;  Insurance  Co.  i'.  Burkett,  72  Mo.  App.  1,3 
Bartholomae   v.    Kauffman,   47   N.   Y.  Super.   Ct.   552    (affd.   91  N.  Y.   654) 
McCartee   v.   Chambers,   6  Wend.   649;   Lincohi   v.   Crandall,   21   Wend.    101 
Fredenhall  v.  Taykjr,  23  Wis.  538,  540  (affd.  26  Wis.  286,  291). 

In  some  cases  the  courts  have  apparently  hokl  the  member  contracting  not 
personally  liable  because  he  acted  as  agent.  Hewitt  v.  Wheeler,  22  Conn.  557, 
563;  Edmonds  v.  Tcrmehr,  60  Iowa,  92;  Abbott  v.  Cobb,  17  Vt.  593;  Cheney  v. 
Clark,  3  Vt.  431;    Johnson  v.  Welch,  42  W.  Va.  18. 

2  Collyer,  The  Law  of  Partnership  (Wood's  edition,  1878),  .sec.  29,  p.  47.  Al- 
most the  same  languages  will  be  found  in  ]>iiullev.  The  Law  of  Partnership  (sixth 
ed.),  Book  I,  sec.  2  (p.  13),  citing  numerous  ca.ses  in  support. 


SECT.  II]  MEMBERS  613 

ties,  no  decision  can  be  found,  I  think,  that  allows  an  action  to  be 
brought  in  the  form  that  has  been  adopted  here.  The  facts  are  these: 
Edward  Ehrhch,  the  legal  plaintiff,  made  a  written  contract  with 
Local  Union  No.  165  of  the  Cigar  Makers'  International  Union  of 
America,  by  which  the  local  society  undertook  to  furnish  him  with 
the  union  label,  to  be  affixed  to  the  boxes  in  which  he  proposed  to 
pack  the  cigars  that  he  was  about  to  manufacture.  For  a  short 
time  the  label  was  furnished,  but  was  then  refused,  and  this  suit  in 
assumpsit  is  to  recover  damages  for  the  refusal.  The  contract  was 
signed  as  follows: 

"Local  Union  No.  165, 
"Cigar  Makers'  International  Union  of  America. 

"By  W.  C.  Hahn, 
"Business  Agent  and  Label  Secretary." 

"Edward  Ehrlich.     [L.  S.]" 

Instead,  however,  of  bringing  suit  in  a  form  that  would  indicate  a 
purpose  to  seek  redress  merely  from  the  local  union,  the  plaintiff 
selected  four  of  its  members,  namely,  Charles  Willenski,  James 
Mahlon  Barnes,  William  C.  Hahn,  and  George  H.  Ullrich,  and  sued 
them,  as  the  praecipe  and  the  summons  both  set  forth,  "individually 
and  for  themselves  and  others,  officers  and  members  of  the  unincor- 
porated association  known  as  Local  Union  No.  165  of  Philadelphia 
of  the  Cigar  Makers'  International  Union  of  America."  In  mj'' 
opinion,  such  an  anomalous  record  cannot  be  sustained,  and  the  non- 
suit must  therefore  be  upheld.  This  is  a  suit  at  law,  where  the  judg- 
ment and  execution  must  be  sustained  by  the  record,  and  nothing 
upon  the  record  —  or  in  the  evidence,  for  that  matter  —  would 
justify  a  judgment  and  a  fi.  fa.  against  the  defendants  in  their  in- 
dividual character.  The  subject  of  suits  by  and  against  unincor- 
porated societies  has  been  considered  in  Ash  v.  Guie,  97  Pa.  493,  39 
Am.  Rep.  818;  Pain  v.  Sample,  158  Pa.  428,  27  Atl.  1107;  Lieder- 
kranz  Society  v.  Germania  Turn  Verein,  163  Pa.  265,  29  Atl.  918,  43 
Am.  St.  Rep.  798;  Sparks  v.  Husted,  5  Pa.  Dist.  R.  189;  Virtue  v. 
loka  Tribe,  Id.  634;  Kurtz  v.  Eggert,  9  Wkly.  Notes  Cas.  126;  Mc- 
Dowell V.  Smith,  21  Wkly.  Notes  Cas.  558;  Grayson  on  Social  and 
Beneficial  Associations  in  Pennsylvania,  sec.  81;  Fitzpatrick  v.  Rut- 
ter,  160  111.  282,  43  N.  E.  392;   and  Gorman  v.  Russell,  14  Cal.  531. 

The  Pennsylvania  Act  of  1876  (P.  L.  53),  relieving  members  of  a 
beneficial  society  (to  which  class  the  Local  Union  seems  to  belong) 
from  individual  liability  for  claims  against  the  society,  is  as  follows: 

"That  members  of  lodges  of  the  order  of  Odd  Fellows,  Knights  of 
Pythias  and  other  organizations  paying  periodical  or  funeral  benefits, 
shall  not  be  individually  liable  for  the  payment  of  periodical  or  funeral 
benefits  or  other  liabilities  of  the  lodge  or  other  organization,  but  that 
the  same  shall  be  payable  only  out  of  the  treasury  of  such  lodges  or 
organizations:    provided,  that  the  provisions  of  this  act  shall  only 


614  LIABILITIES   OF   LABOR   UNION   MEMBERS         [CHAP.  XII 

apply  to  unincorporated  associations:  and  provided,  further,  that 
this  act  shall  not  apply  to  any  liability  heretofore  incurred." 

In  view  of  this  statute,  if  it  be  true  that  the  local  union  is  properly 
to  be  classed  as  a  beneficial  society,  it  might  be  well  for  the  plaintiff 
to  consider  whether  an  action  at  law  is  a  suitable  remedy  for  enforc- 
ing liability  against  the  treasury  of  the  association,  or  whether  the 
more  flexible  remedy  in  equity  is  not  better  adapted  for  the  purpose. 
If  the  action  at  law  is  not  adequate,  or  is  obviously  unsuitable, 
equity  mav  have  jurisdiction  on  this  ground  alone:  Bierbower's  App., 
107  Pa.  14;  Brush  Elec.  Co.'s  App.,  114  Pa.  574,  7  Atl.  794;  Gas  Co. 
V.  Gas  Co.,  186  Pa.  443,  40  Atl.  1000,  65  Am.  St.  Rep.  865;  Thomp- 
son V.  Allen  Co.,  115  U.  S.  550,  6  Sup.  Ct.  140,  29  L.  Ed.  472;  Mc- 
Conihay  v.  Wright,  121  U.  S.  201,  7  Sup.  Ct.  940,  30  L.  Ed.  932; 
Kilbourn  v.  Sunderland,  130  U.  S.  505,  9  Sup.  Ct.  594,  32  L.  Ed. 
1005;  Tyler  v.  Savage,  143  U.  S.  95,  12  Sup.  Ct.  340,  36  L.  Ed.  82. 

The  motion  to  take  off  the  nonsuit  is  refused. 

Exception  to  the  plaintiff. 


SIFF  V.  FORBES 

Supreme  Court  of  New  York.     1909 

135  App.  Div.  39 

Scott,  J.  Defendant  appeals  from  a  determination  of  the  Appel- 
late Term  affirming  a  judgment  of  the  City  Court  in  favor  of  plaintiff. 

The  plaintiff  sues  for  money  alleged  to  have  been  loaned  to  the 
Socialist  Labor  party,  an  unincorporated  voluntary  organization. 
It  is  conceded  that  this  action  is  controlled  by  the  rule  in  jMcCabe  v. 
Goodfellow  (133  N.  Y.  89),  that  in  order  to  succeed  the  plaintiff 
must  show  that  all  the  members  of  the  association  are  liable  either 
jointly  or  severally  to  pay  the  debt,  and  that  the  individual  liability 
for  debts  contracted  by  officers  or  committees  depends  upon  the 
application  of  the  principles  of  the  law  of  agency;  that  authority 
to  create  such  liability  will  not  be  presumed  or  implied  from  the 
existence  of  a  general  power  to  attend  to  or  transact  business  or  pro- 
mote the  objects  for  which  the  association  is  formed,  except  when 
the  debt  contracted  is  necessary  for  its  preservation.  The  loan 
upon  which  this  action  is  based  was  contracted  by  the  national 
executive  committee  of  the  party.  It  is  not  contended  that  this 
committee  had  any  direct  authority  to  incur  indebtedness  on  behalf 
of  all  the  members.  It  is  testified  to  by  some  of  the  witnesses  that 
the  incurring  of  the  indebtedness  was  reported  to  and  approved  by 
the  national  convention,  and  this  is  claimed  to  have  been  a  sufficient 
ratification.  We  cannot  find  in  the  constitution  any  direct  authority 
given  to  the  national  convention  to  incur  debts  wiiich  shall  be  bind- 
ing upon  the  members  of  the  party  generally.  The  convention  is 
given  power  to  frame  a  platform,  decide  the  form  of  organization, 


SECT.  II]  MEMBERS  615 

select  the  seats  of  the  national  executive  committee  and  board  of 
appeals  and  investigate  and  decide  all  difficulties  within  the  party. 
All  acts  of  the  convention  must  be  submitted  to  the  sections  for  a 
general  vote.  Assuming  that  the  convention  ratified  the  loan,  this 
was  not  equivalent  to  ratification  by  the  party  at  large,  in  the  absence 
of  a  reference  to  the  sections  for  a  general  vote.  The  court  below 
suggested  that  the  report  to  the  national  committee  gave  the  party 
at  large  a  knowledge  of  the  transaction,  and  that  its  silent  acqui- 
escence was  a  sufficient  ratification.  (63  Misc.  Rep.  319.)  In  the 
absence  of  a  reference  to  the  sections  it  cannot  be  assumed  that  the 
party  at  large  had  any  knowledge  of  a  report  made  to  the  convention, 
and  in  the  absence  of  knowledge  "silent  acquiescence"  certainly 
cannot  be  construed  into  ratification.  Although  it  seems  to  be  now 
claimed  that  the  money  was  advanced  to  preserve  the  existence  of 
the  party,  the  evidence  does  not  bear  out  the  claim,  and  the  court 
expressly  took  that  question  from  the  jury  without  apparently  any 
objection  on  the  part  of  plaintiff.  It  is  extremely  difficult  to  trace  the 
disposition  of  the  money,  but  it  appears  that  at  least  a  part  of  it  was 
devoted  to  extricating  certain  newspapers  from  difficulties.  These 
papers  were  issued  as  organs  of  the  party,  but  their  existence  was  not 
so  tied  up  with  the  existence  of  the  party  as  to  justify  a  holding  that 
the  preservation  of  the  party  depended  upon  their  preservation. 

The  determination  of  the  Appellate  Term  and  the  judgment  of 
the  City  Court  must  be  reversed  and  a  new  trial  granted,  with  costs 
to  appellant  in  all  courts  to  abide  the  result. 

Ingraham,  McLaughlin,  Laughlin,  and  Houghton,  JJ.,  con- 
curred. ^ 

^  In  Wrightington,  Unincorporated  Associations,  p.  275,  it  is  said: 
"  The  striking  distinction  between  associations  for  profit  and  non-profit  asso- 
ciations is  in  the  basis  of  liability  of  individual  members  for  association  obliga- 
tions. All  members  of  a  partnership  are  personally  liable  for  partnership  debts. 
In  the  kind  of  association  now  under  consideration,  only  those  members  are  liable 
who  expressly  or  impliedl}'  with  full  knowledge  authorize  or  ratify  the  specific 
acts  in  question.  Matter  of  St.  James  Club,  2  De  G.  M.  &  G.  383,  390,  16  Jur. 
1075  (social  club) ;  Wood  v.  Finch,  2  Fost.  &  Fin.  447  (club  to  buy  coal  at  whole- 
sale for  members);  Fleming  v.  Hector,  2  Gale,  180,  2  M.  &  W.  172  (ditto);  De- 
launey  v.  Strickland,  2  Stark.  416,  3  E.  C.  L.  470  (social  club);  Hawke  v.  Cole,  62 
L.  T.  Rep.  N.  s.  658  (navy  mess) ;  Overton  v.  Hewett,  3  T.  L.  R.  246,  248  (member 
of  managing  committee  of  club) ;  Fox  v.  Narramore,  36  Conn.  376,  382  (military 
company);  Davidson  v.  Holden,  55  Conn.  103,  112  (cooperative  store);  Augusta 
Club  V.  Cotton  States,  etc.,  Fair  Ass'n,  50  Ga.  436,  442  (committee  of  arrange- 
ments of  a  fair) ;  Murray  v.  Walker,  83  la.  202  (assisting  in  holding  a  fair.  Liable 
for  prizes);  Schumaker  v.  Sumner  Tel.  Co.,  161  la.  326  (members  of  a  farmers' 
telephone  line  not  liable  on  a  note  in  name  of  association) ;  Newell  v.  Borden,  128 
Mass.  31  (fire  engine  company.  Vote  at  meeting);  Volger  v.  Ray,  131  Mass.  439 
(poultry  association.  Liability  for  prizes) ;  Ray  v.  Powers,  134  Mass.  22  (ditto) ; 
Ferris  v.  Thaw,  5  Mo.  App.  279,  286  (Masonic  lodge);  Hammerstein  v.  Parsons, 
38  Mo.  App.  332,  335  (benefit  certificate);  Riffe  v.  Proctor,  99  Mo.  App.  601,  608 
(church);  Hornberger  v.  Orchard,  39  Neb.  639,  642  (social  club);  Sizer  f.  Daniels, 
66  Barb.  426,  433  (political  committee) ;  Hosman  v.  Ilinneally,  86  N.  Y.  S.  263, 
43  Misc.  76  (see  90  N.  Y.  S.  357)  (socialistic  labor  party.    Action  by  employee  of 


616  LIABILITIES    OF    LABOR    UNION    MEMBERS  [CHAP,  XII 

Weaver,  C.  J.,  in  SCHUMACHER  v.  SUMNER  TELE- 
PHONE CO. 

161  Iowa,  326,  331-333  (1913) 

We  have  next  to  inquire  whether  there  was  a  partnership  relation 
in  fact  or  in  law  between  the  appellees  and  Robish,  and,  if  so,  whether 
the  note  in  suit  was  given  under  circumstances  making  it  a  partner- 
ship obligation.  That  there  was  no  express  partnership  agreement 
and  that  appellees  never  in  fact  understood  or  believed  that  they  had 
assumed  any  such  relation  is  perfectly  clear,  but  this  of  course  would 
be  no  defense  if  it  clearly  appears  that  they,  with  others,  entered  into 
a  voluntary  unincorporated  association  for  the  purpose  of  construct- 
ing and  operating  a  telephone  line,  and  it  further  clearly  appears  that 
the  indebtedness  sued  upon  was  lawfully  incurred  by  the  association 
in  the  pursuance  of  the  business  for  which  it  was  organized,  for  such 
an  association,  it  is  well  settled,  is  to  a  degree  a  partnership,  and 
within  well-defined  limits  the  individual  member  may  be  made  liable 
upon  the  contracts  of  the  association,  even  where  he  has  given  no 
express  consent. 

The  power  to  thus  bind  the  individual  member  without  notice  and 
without  his  consent  is  certainly  no  greater  than  in  other  partnerships 
and  extends  only  to  contracts  lawfully  made  and  obligations  properly 
incurred.  The  authority  of  one  or  more  partners  to  borrow  money 
and  thus  create  an  obligation  against  other  partners  without  their 
knowledge  or  consent  is  not  unlimited,  nor  is  it  a  characteristic  of  all 
partnerships.  Partnerships  and  unincorporated  associations  of  in- 
dividuals are  among  the  most  familiar  expedients  for  the  transaction 
of  business.  They  are  usually  classified  into  trading  and  non-trad- 
ing partnerships  and  associations,  and  in  each  the  authority  of  one 
partner  or  member  to  bind  another  partner  or  member  is  confined  to 
transactions  within  the  natural  and  proper  scope  of  the  business  in 
which  they  are  associated.  22  Ency.  Law  (2d  ed.),  153,  154;  4  Ency. 
Law  (2d  cd.),  61,  62;  Sutton  v.  Weber,  127  Iowa,  364. 

A  trading  partnership  or  association  is,  generally  speaking,  one 
doing  business  commercially  (a  business  of  buying  and  selling  for 
profit),  while  those  in  which  the  business  done  is  something  other 
than  buying  and  selling  for  profit  constitute  the  non-trading  class. 
Among  the  most  familiar  of  the  latter  are  partnerships  for  the  prac- 
tice of  a  profession.    But  they  are  by  no  means  limited  to  these.  .  .   . 

a  newspaper  condiutc!'!  by  trustees  and  supported  by  fixed  contributions  from 
nicinbcrs);  Lightbourne  v.  Walsh,  89  N.  Y.  S.  856,  "97  Ajip.  Div.  187;  Siff  v. 
Forbes,  119  N.  Y.  S.  773,  13r)  App.  Div.  39  (loan  to  socialist  labor  party);  Devoss 
V.  Gray,  22  Ohio  St.  1.59,  169  (trustees  of  a  church) ;  iMchbauin  r.  Irons,  6  Watts  & 
S.  67  (Pa.)  (dinner  committee  appointed  at  a  pul)lic  meeting);  Ash  v.  (Juie,  97 
Pa.  St.  493,  498  (Masonic  lodge);  Winona  Lumber  Co.  i'.  Church,  6  S.  D.  498,  503 
(trotting  i)ark);  .Vrkins  v.  Dominion  Live  Stock  Association,  17  Ont.  Pr.  Rep. 
303,  305  (dub)." 


SECT.  II]  MEMBERS  617 

In  non-trading  partnerships  and  unincorporated  associations  the 
authority  of  partners  to  involve  each  other  in  financial  obligations 
is  much  more  limited  than  in  trading  organizations.  While  in  the 
latter  the  authority  to  borrow  money  for  the  real  or  professed  use  of 
the  partnership  is  ordinarily  recognized,  in  the  former  it  is  quite  as 
universally  denied.  According  to  the  great  weight  of  authority,  it 
is  not  within  the  power  of  a  non-trading  partnership  or  association 
to  borrow  money  or  make  negotiable  paper  and  charge  with  individ- 
ual liability  partners  or  members  not  assenting  thereto.  This  is  dis« 
tinctly  held  in  Scheie  v.  Wagner,  163  Ind.  20  (71  N.  E.  127);  Snively 
V.  Matheson,  12  Wash.  88  (40  Pac.  628,  50  Am.  St.  Rep.  877).  See 
also,  Ewell's  Lindley  on  Partnership,  vol.  1,  sec.  130;  Lee  v.  Bank, 
45  Kan.  8  (25  Pac.  196,  11  L.  R.  A.  238) ;  Harris  v.  City,  72  Md.  22 
(17  Atl.  1046,  20  Atl.  Ill,  985,  8  L.  R.  A.  677,  25  Am.  St.  Rep.  565); 
McConnell  v.  Denver,  35  Cal.  365  (95  Am.  Dec.  107) ;  Dowling  v. 
Bank,  145  U.  S.  512  (12  Sup.  Ct.  928,  36  L.  Ed.  795);  Story's  Part- 
nership, sec.  102.  Stated  in  substantially  the  same  form  it  has  been 
said  that  in  the  case  of  a  non-trading  concern  the  burden  is  upon  the 
plaintiff  to  prove  either  express  authority,  or  circumstances  from 
which  such  authority  can  be  fairly  implied,  in  the  partner  executing 
the  note.  Teed  v.  Parsons,  202  111.  455  (66  N.  E.  1046);  Bank  v. 
Faults,  115  Mo.  App.  42  (90  S.  W.  755);  Schellenbeck  v.  Studebaker, 
13  Ind.  App.  437  (41  N.  E.  845,  55  Am.  St.  Rep.  240).  .  .  . 


WISE  V.  PERPETUAL  TRUSTEE  COMPANY,  LIMITED 

Privy  Council.     1902 

[1903]  A.  C.  139 

The  judgment  of  their  Lordships  was  delivered  by 

Lord  Lindley.  This  appeal  raises  the  extremely  important 
question  whether  the  members  of  an  ordinary  club  are  personally 
liable  to  indemnify  the  trustees  of  the  club  against  liabilities  in- 
curred by  them  as  such  trustees,  and  where  there  is  no  rule  impos- 
ing such  liability. 

The  undisputed  facts  are  shortly  as  follows: 

In  the  year  1886  certain  persons,  including  a  Mr.  Paling,  now 
deceased,  formed  a  club  in  Sydney,  New  South  Wales,  which  was 
known  as  the  Cercle  Frangais.  The  appellant  became  a  member  of 
the  club  in  July,  1886,  and  remained  a  member  of  the  club  until  its 
dissolution.  In  January,  1887,  the  club  adopted  certain  rules,  the 
12th  and  17th  of  which  were  as  follows: 

"(12)  The  administration  of  the  affairs  of  the  club  is  entrusted 
to  a  committee  elected  at  the  first  general  meeting  in  each  year.  The 
duties  of  the  members  of  the  committee  are  purely  honorary." 

"  (17)  The  committee  disposes  of  the  funds  of  the  society,  and 


618  LIABILITIES    OF   LABOR   UNION    MEMBERS  [CHAP.   XII 

has  full  power  to  take  all  measures  for  the  internal  management  which 
it  may  deem  necessar^^" 

Between  July  and  December,  1887,  it  was  considered  by  some 
members  of  the  club  that  the  premises  then  occupied  by  the  club 
at  No.  50,  Wyn3^ard  Square  were  too  small,  and  steps  were  taken  to 
provide  increased  accommodation.  A  general  meeting  was  called 
to  consider  the  subject,  and  a  meeting  was  held  on  December  9, 
1887.  Too  few  members  attended  to  bind  the  club;  but  the  subject 
of  obtaining  a  lease  of  new  premises  of  the  club  was  discussed,  and 
the  members  present  resolved  that  the  matter  be  left  in  the  hands 
of  M.  Lachaume,  the  president  of  the  club,  to  make  the  best  arrange- 
ments in  the  interests  of  the  club,  and  the  said  Lachaume  and  the 
said  W.  H.  Paling  and  Messrs.  Doublet  and  Van  de  Velde  were 
appointed  trustees  of  the  club. 

A  general  meeting  of  the  club  was  held  on  January  13,  1888,  at 
which  the  minutes  of  the  meeting  of  December  9,  1887,  were  read 
and  confirmed. 

On  July  12,  1888,  the  above-mentioned  Messrs.  Paling,  Lachaume, 
Doublet,  and  Van  de  Velde  became  lessees  of  certain  premises  known 
as  50,  Wynyard  Square  and  9,  Wynyard  Lane  for  a  term  of  ten  years 
from  July  9,  1888,  at  a  rental  of  555L  per  annum,  and  subject  also 
to  certain  onerous  covenants  set  out  in  the  said  lease.  After  the  execu- 
tion of  this  lease  the  above-mentioned  premises  were  used  for  the 
purposes  of  the  club,  and  the  club  remained  in  possession  thereof 
until  it  was  dissolved. 

In  July,  1888,  after  the  execution  of  the  lease,  the  old  rules  of  the 
club  were  repealed  and  new  rules  were  adopted.  The  3d,  4th,  14th, 
and  15th  were  as  follows: 

"  (3)  The  property  of  the  club,  subject  to  the  liabilities  thereof, 
shall  belong  to  the  members  for  the  time  being. 

"(4)  No  member  shall,  by  reason  of  his  membership,  have  any 
transmissible  or  assignable  interest,  by  operation  of  law  or  other- 
wise, in  any  of  the  property  of  the  club.  On  any  member  ceasing, 
by  death,  resignation,  or  otherwise,  to  be  such,  all  his  interest  shall 
survive,  accrue,  and  belong  to  the  other  members  for  the  time  being." 

"  (14)  The  affairs  of  the  club  shall  be  under  the  management  of 
the  following  office-bearers,  namely,  a  president,  vice-president, 
four  trustees,  a  committee,  and  a  treasurer. 

"  (15)  All  purchases,  investments,  leases,  conveyances,  securities, 
or  contracts  by,  to,  or  on  behalf  of  the  club  shall  be  made,  taken,  or 
entered  into  in  the  names  of  the  trustees.  All  the  real  and  personal 
property  of  the  club  shall  be  vested  in,  and  shall  be  hold  by  them 
upon  trust  for,  the  members  for  the  time  being,  and  shall  (except  as 
to  the  real  property)  be  subject  to  the  disposition  of  the  committee, 
whose  order,  certified  in  writing  vmder  the  luind  of  the  chairman  of 
the  day  and  attested  by  the  secretary,  shall  be  obligatory  upon  and 
a  justification  to  the  trustees  as  to  making,  taking,  or  entering  into 


SECT.  II]  MEMBERS  619 

any  such  purchase,  investment,  lease,  conveyance,  security,  or  con- 
tract, or  any  disposal  of  any  personal  property  vested  in  them  as 
such  trustees.  And  the  orders  of  the  committee,  certified  in  like 
manner  as  to  any  purchases  necessary  for  carrying  on  the  internal 
management  of  the  club,  shall  also  be  obligatory  upon  and  a  justifica- 
tion to  the  trustees  for  making  the  same.  The  real  property  of  the 
club  shall  not  be  dealt  with,  except  by  the  resolution  of  a  general  or 
special  general  meeting  of  the  members  of  the  club." 

The  rules  prescribed  the  entrance  fees  and  subscriptions,  but 
there  was  no  rule  imposing  any  liability  on  any  of  the  members  to 
pay  more. 

The  club  continued  to  exist  until  February,  1891,  when  it  was 
dissolved.  It  had  eighty  members  when  the  lease  was  obtained, 
and  ninety  more  joined  afterwards. 

In  April,  1891,  the  above-mentioned  lessees  sublet  the  premises 
comprised  in  the  lease  of  July  12,  1888,  to  the  Cosmopolitan  Club 
Co.,  for  the  unexpired  portion  of  the  ten  years'  term  less  one  day, 
the  underlessees  covenanting  to  pay  the  same  rent  and  perform  the 
lessees'  covenants.  The  Cosmopolitan  Club  Co.  remained  in  pos- 
session until  Januar}^,  1894,  and  paid  the  rent  up  to  that  date,  when 
they  went  into  liquidation.  The  lessees  then  re-entered  into  pos- 
session of  the  premises,  and  from  time  to  time  relet  them,  giving 
the  club  the  benefit  of  all  rentals  received.  Finally  all  the  trustees 
except  the  said  William  Henry  Paling,  being  unable  to  pay  the  rent, 
the  said  Paling  in  his  lifetime,  and  his  executors  (the  respondents  to 
this  appeal)  after  his  death,  paid  under  the  lessees'  covenants  various 
sums  amounting  in  the  aggregate  to  2350L  or  thereabouts  in  excess 
of  moneys  received  by  them  by  subletting  the  premises. 

On  April  22,  1897,  the  executors  of  the  said  William  Henry  Paling, 
deceased,  filed  a  statement  of  claim  in  an  action  in  the  Supreme 
Com*t  of  New  South  Wales  in  Equity  against  certain  members  of 
the  club  selected  to  represent  them  all,  and  the  plaintiffs  prayed  as 
follows : 

"  (1)  That  it  may  be  declared  that  all  persons  who  were  members 
of  the  said  Cercle  Frangais  on  the  12th  day  of  July,  1888,  and  all 
persons  who  became  members  of  the  same  Cercle  Fran^ais  subse- 
quent thereto,  and  the  personal  representatives  of  any  of  such  persons 
respectively  who  are  now  deceased,  became  and  are  jointly  and 
severally  liable  to  contribute  to  and  indemnify  the  plaintiffs  and 
the  estate  of  the  said  William  Henry  Paling  against  the  rent  paid 
and  expenses  incurred  by  the  said  William  Henry  Paling  during  his 
lifetime,  and  by  the  plaintiffs  since  his  death,  in  respect  of  the  said 
lease  and  the  covenants  thereof,  and  the  future  rent  and  expenses  to 
which  the  plaintiffs,  as  executors  of  the  said  William  Henry  Paling, 
are  or  may  become  liable  under  the  said  lease  and  the  covenants 
thereof,  and  that  the  defendants,  and  all  such  other  persons  and 
representatives  as  respectively  aforesaid,  may  be  jointly  and  sev- 


620  LIABILITIES   OF   LABOR   UNION   MEMBERS         [CHAP.  XII 

erally  decreed  to  repay  to  the  plaintiffs  and  indemnify  them  against 
such  rent  and  expenses,  with  interest  on  the  same  at  such  rate  as 
this  Honourable  Court  shall  direct,  and  also  to  pay  the  plaintiffs' 
costs  of  suit. 

"  (2)  That  an  account  be  taken  under  the  direction  of  this  Honour- 
able Court  of  the  rent  and  expenses  respectively  aforesaid. 

"(3)  That  an  inquiry  may  be  directed  as  to  the  persons  con- 
stituting the  said  several  classes  of  members,  and  whether  any  and 
which  of  such  persons  are  dead;  and,  if  so,  who  are  their  respective 
legal  personal  representatives." 

The  appellant  was  not  a  party  to  the  said  suit,  nor  was  he  served 
with  notice  of  the  said  statement  of  claim  nor  of  the  proceedings 
therein.  In  the  statement  of  claim  the  plaintiff  set  out  the  various 
classes  of  members  which  each  defendant  was  to  represent.  They 
were  as  follows: 

(i)  a'Beckett  as  representing  members  of  the  committee  at  the 
time  of  the  making  of  the  lease. 

(ii)  Fesq  as  representing  members  of  the  club  present  at  the  gen- 
eral meeting  of  Januar}^  13,  1888. 

(iii)  Burne  as  representing  members  at  the  time  when  the  lease 
was  made,  but  who  were  not  present  at  the  meeting  of  January  13, 
1888. 

(iv)  Woolcott-Waley  as  representing  members  of  the  committee 
at  a  date  subsequent  to  the  lease  being  made. 

(v)  Henderson  as  representing  the  members  of  the  club  elected 
at  a  date  subsequent  to  the  date  of  the  lease. 

On  May  25,  1897,  Manning,  Chief  Judge  in  Equity,  made  an 
order  authorising  the  above-mentioned  defendants  to  defend  the  pro- 
ceedings respectively  on  behalf  of  the  above  specified  classes.  The 
appellant  was  not  served  with  and  was  no  party  to  the  said  order. 

On  October  27,  1898,  Simpson,  Chief  Judge  in  Equity,  made  a 
decree  dismissing  the  suit  against  the  defendants  Woolcott-Waley 
and  Henderson  with  costs,  and  declaring  (inter  alia)  that  the  de- 
fendants a'Beckett,  Fesq,  and  Burne,  and  all  other  persons  who 
were  members  on  July  12,  1888,  and  who  assented  to  or  subsequently 
ratified  the  action  of  the  trustees  of  the  club  in  taking  the  lease  of 
that  date,  are  and  each  of  them  is  bound  to  indemnify  the  late  William 
Henry  Paling  and  his  estate  against  the  rent  and  other  moneys  paid 
by  the  said  William  Henry  Paling  or  his  executors  under  the  said 
lease.  By  the  said  order  it  was  further  decided  that  the  Master  in 
Equity  should  inquire  as  to  which  persons  were  liable  to  contribute 
on  the  basis  of  the  above  decree. 

On  August  5,  1899,  the  defendants  gave  notice  to  the  appellant 
that  the  Master  in  Equity  was  proceeding  to  settle  the  said  list,  and 
that  the  appellant's  name  had  been  submitted  to  the  master  for 
inclusion  therein. 


SECT.  II]  MEMBERS  621 

On  August  25,  1899,  the  appellant  filed  an  affidavit  objecting  to 
his  inclusion  in  the  said  fist,  and  on  November  21,  1899,  the  appellant 
filed  a  notice  of  further  objections. 

In  November,  1899,  evidence  was  taken  upon  the  said  matter, 
and  the  master  found  that  the  appellant  had  assented  to  or  ratified 
the  action  of  the  trustees  in  taking  the  lease,  and  that  he  ought  to 
indemnify  the  plaintiffs  with  costs  to  be  taxed;  and  on  December 
15,  1899,  the  master  made  a  separate  certificate  to  that  effect.  On 
February  15,  1900,  the  appellant  took  out  a  summons  to  vary  the 
master's  certificate.  The  said  summons  was  heard  by  the  Chief 
Judge  in  Equity;  and  on  March  5,  1900,  the  said  summons  was 
dismissed  with  costs. 

On  March  19,  1900,  the  appellant  filed  a  notice  of  appeal  against 
the  said  order  to  the  Full  Court;  and  on  July  23,  1900,  the  said 
appeal  was  dismissed  with  costs. 

The  present  appeal  is  from  these  last  orders.  There  is  no  appeal 
from  the  decree  of  October  27,  1898.  In  the  case  lodged  by  the  ap- 
pellant he  stated,  and  his  counsel  repeated  before  their  Lordships, 
that  the  appellant  was  always  willing  to  share  with  all  the  other 
members  of  the  club  the  liabilities  under  the  said  lease,  but  as  the 
form  of  the  suit  and  the  declarations  in  the  decree  rendered  only  four 
or  five  persons  liable  to  make  good  a  sum  which  (by  the  addition  of 
costs)  amounted  to  over  5000^.,  he  objected  and  objects  to  take  upon 
himself  an  individual  liability  not  shared  by  other  members  of  the 
club. 

The  decree  of  October  27,  1898,  was  not  made  upon  the  broad 
ground  that  the  members  of  the  club  as  cestuis  que  trustent  were 
bound  to  indemnify  their  trustees;  it  was  made  upon  the  theory 
that  only  those  members  of  the  club  were  liable  to  indemnify  the 
plaintiffs  who  had  assented  to  or  ratified  the  taking  of  the  lease ;  and 
the  master's  certificate  found  that  the  appellant  had  assented  to  and 
ratified  it.  The  Chief  Judge  refused  to  vary  the  certificate,  thinking 
it  right.  The  Full  Court,  on  appeal,  affirmed  the  decision,  but  not 
unanimously,  nor  on  the  same  grounds.  The  Chief  Justice  con- 
sidered it  proved  that  the  appellant  had  become  one  of  the  cestuis 
que  trustent  of  the  lease,  and  was,  therefore,  liable  to  indemnify  the 
plaintiffs.  Cohen,  J.,  considered  that  the  appellant  had  assented  to 
and  ratified  the  taking  of  the  lease,  and  had,  therefore,  become  liable. 
Owen,  J.,  differed.  He  thought  the  master's  certificate  wrong,  and 
that  the  appellant  ought  to  succeed. 

With  respect  to  the  appellant's  assent  or  ratification  to  the  tak- 
ing of  the  lease,  much  discussion  took  place  as  to  what  was  meant 
in  this  case  by  ratification,  and  it  was  contended  that  no  ratification, 
as  distinguished  from  approval,  could  be  established.  It  is  not, 
however,  necessary  to  do  more  than  to  say  that  it  became  plain  to 
their  Lordships  when  the  evidence  had  been  examined  that,  although 


622  LIABILITIES    OF    LABOR   UNION    MEMBERS  [CHAP.  XII 

there  was  ample  evidence  to  prove  that  the  appellant  knew  that  a 
lease  had  been  taken  for  the  club,  and  that  the  club  had  the  use  of 
the  property,  and  that  the  lease  might  become  a  burden  to  the  club, 
yet  that  the  appellant  had  done  nothing  whatever  to  incur  any  lia- 
bility to  indemnify  the  trustees,  unless  such  liability  attached  to  him 
as  a  member  of  the  club  and  as  one  of  the  cestuis  que  trustent  of  the 
lessees.  It  further  appeared  to  their  Lordships  to  be  proved  that, 
notwithstanding  the  irregularities  of  the  meeting  of  December, 
1887,  and  the  doubts  thrown  on  the  legal  validity  of  its  subsequent 
confirmation,  yet  that  the  members  of  the  club  generally  and  the 
appellant  with  the  others,  through  the  committee  of  management 
and  otherwise,  so  far  assented  to  what  had  been  done  as  to  have 
become  cestuis  que  trustent  of  the  lessees.  Their  Lordships  were 
satisfied  that  the  relation  of  trustee  and  cestui  que  trust  had  been 
created.  It  follows  from  this  that  the  lessees  as  trustees  were  en- 
titled to  be  indemnified  out  of  any  property  of  the  club  to  which 
their  lien  as  trustees  extended.  But  the  evidence  against  the  ap- 
pellant did  not  prove  an3^thing  more  than  the  existence  of  the  above 
relation;  and  their  Lordships  intimated  that  in  their  opinion  the  real 
question  for  decision  was  whether  the  appellant  was  liable  to  in- 
demnify the  trustees  under  the  circumstances  thus  proved.  This 
view  was  ultimately  accepted  by  counsel,  and  their  Lordships  do 
not,  therefore,  think  it  necessary  to  allude  further  to  the  evidence 
on  the  present  occasion. 

In  Hardoon  v.  Belilios,  [1901]  A.  C.  118,  this  Board  had  to  consider 
the  right  of  trustees  to  be  indemnified  by  their  cestuis  que  trustent 
against  liabilities  incurred  by  the  trustees  by  holding  trust  property. 
The  right  of  trustees  to  such  indemnity  was  recognised  as  well  estab- 
lished in  the  simple  case  of  a  trustee  and  an  adult  cestui  que  trust. 
But,  as  was  then  pointed  out,  this  principle  by  no  means  applies  to 
all  trusts,  and  it  cannot  be  applied  to  cases  in  which  the  nature  of 
the  transaction  excludes  it. 

Clubs  are  associations  of  a  peculiar  nature.  They  are  societies 
the  members  of  which  are  perpetually  changing.  They  are  not  part- 
nerships; they  are  not  associations  for  gain;  and  the  foatui-e  which 
distinguishes  them  from  other  societies  is  that  no  member  as  such 
becomes  liable  to  pay  to  the  funds  of  the  society  or  to  any  one  else 
any  money  beyond  the  subscriptions  required  by  the  rules  of  the 
club  to  be  paid  so  long  as  he  remains  a  member.  It  is  upon  this 
fundamental  condition,  not  usually  expressed  but  understood  by 
every  one,  that  clubs  are  formed;  and  this  distinguishing  feature  has 
been  often  judicially  recognised.  It  has  been  so  recognised  in  actions 
by  creditors  and  in  winding-up  proceedings:  see  Flemying  v.  Hector, 
(183G)  2  M.  &  W.  172;  St.  James'  Club,  2  D.  M.  &  G.  383. 

Apart  from  an  observation  of  Lord  St.  Leonards  in  the  last  case, 
and  which  observation  is  in  favour  of  the  appellant,  the  only  reported 
case  in  which  a  Court  has  had  to  consider  the  application  to  a  club 


SECT.  II]  MEMBERS  623 

of  this  right  to  indemnity  is  Minnitt  v.  Lord  Talbot,  L.  R.  Ir.  7  Ch. 
407.  In  that  case  some  members  of  a  club,  who  had  guaranteed  the 
repayment  of  money  borrowed  for  the  club,  sought  indemnity,  not 
onl}^  out  of  the  property  of  the  club,  but  from  the  members  personally. 
The  Court,  which  had  already  given  effect  to  their  lien,  L.  R.  Ir.  1 
Ch.  143,  afterwards  made  an  additional  order  and  inquiry  similar  to 
those  made  in  this  case.  The  grounds  upon  which  this  addition  to 
the  original  decree  was  made  do  not  appear;  nor  does  it  appear  what 
were  the  grounds  on  which  any  member  was  held  to  have  incurred 
liability,  nor,  indeed,  whether  any  member  had  incurred  such  lia- 
bility. This  case  does  not,  therefore,  assist  their  Lordships  on  the 
present  occasion. 

The  question  now  to  be  decided  may  be  regarded  as  not  yet  covered 
by  authority;  and  a  choice  must  be  made  between  either  ignoring 
the  essential  features  of  a  club  or  holding  that  the  general  rule  estab- 
lished in  Hardoon  v.  Belilios,  [1901]  A.  C.  118,  is  inapphcable  to  such 
a  body  of  persons.  Their  Lordships  feel  no  difficulty  in  making  this 
choice.  The  trustees  of  a  club  are  the  last  persons  to  demand  that 
the  fundamental  conditions  on  which  their  cestuis  que  trustent  have 
become  such  shall  be  completely  ignored. 

The  appellant  in  this  case  is  not,  in  their  Lordships'  opinion, 
under  any  legal  or  equitable  obligation  to  pay  or  contribute  any- 
thing towards  the  indemnity  of  the  plaintiffs;  but  he  has  offered  to 
do  so,  and  the  plaintiffs  are  not  satisfied  with  his  offer.  Their  en- 
deavour to  obtain  more  is  to  be  regretted,  and  cannot  succeed.  This 
may  seem  hard  on  the  trustees;  but  they  have  only  themselves  to 
blame  for  their  own  imprudence  in  not  seeing  to  their  own  safety. 
A  decision  in  their  favour  would  not  only  be  hard  on  the  members 
of  the  club,  but  would  be  inconsistent  with  the  terms  on  which  they 
became  members. 

Their  Lordships  will,  therefore,  humbly  advise  His  Majesty  to 
set  aside  the  certificate  of  the  master  and  to  reverse  the  orders  of 
March  5,  1900,  and  July  23,  1900,  with  costs. 

The  respondents  will  pay  the  costs  of  the  appeal. 


WILCOX  V.  ARNOLD 

Supreme  Judicial  Court  of  Massachusetts.     1895 

162  Mass.  577 

Contract,  for  work  done  and  materials  furnished  by  the  plaintiffs 
for  the  defendants.  Trial  in  the  Superior  Court  without  a  jury, 
before  Hopkins,  J.,  who  found  for  the  plaintiffs,  and  the  defendants 
alleged  exceptions,  in  substance  as  follows. 

The  Class  of  1893  of  Tufts  College,  including  all  of  the  defendants 
and  others  except  one  Gifford,  at  a  class  meeting  duly  called  voted 
to  publish  a  volume  to  be  called  "The  Brown  and  Blue,"  and  elected 


624  LIABILITIES   OF   LABOR   UNION   MEMBERS         [CHAP.  XII 

the  defendant  Arnold  as  business  manager  of  the  pubHcation.  The 
class  also  elected  certain  other  of  the  defendants  as  editors  of  the 
publication,  and  the  defendant  Arnold  made  with  the  plaintiffs,  who 
were  printers,  a  written  contract  for  the  publication  of  the  book. 
Certain  additions  to  and  changes  in  the  terms  of  the  contract  were 
subsequently  made  at  the  request  of  Arnold;  and  the  plaintiffs  by 
letter  to  Arnold  stated  that  they  intended  to  hold  him  personally 
responsible  for  the  debt  to  them.  The  plaintiffs  performed  their 
part  of  the  contract  according  to  its  terms  as  modified  by  the  addi- 
tions and  alterations  aforesaid,  and  delivered  the  publication  to 
Arnold. 

There  was  evidence  offered  by  the  plaintiffs  tending  to  show  that 
Arnold  told  them,  when  making  the  contract,  that  he  represented 
the  class;  that  Martin,  one  of  the  defendants,  at  some  time  subse- 
quent told  them  the  class  stood  behind  Arnold;  that  DeGoosh,  also- 
one  of  the  defendants,  at  some  time  subsequent  told  them  "we  know 
we  owe  you  a  large  amount";  that  the  plaintiffs  gave  credit  to  the 
class;  and  that  all  of  the  defendants  except  Gifford  were  present  at 
the  class  meeting  at  which  Arnold  was  elected  business  manager. 

There  was  evidence  offered  by  the  defendants  tending  to  prove 
that  they  never  authorized  the  defendant  Arnold  to  pledge  their 
credit  for  the  publication  of  the  book;  that  they  never  instructed 
him  as  to  its  publication;  that  he  never  reported  to  the  class  what  he 
had  done  until  he  reported  that  he  had  not  received  from  sales  of 
the  book  enough  to  meet  the  expenses;  that  he  never  consulted  with 
any  other  of  the  defendants  as  to  the  book,  but  himself  fixed  its 
price  and  the  charge  for  advertisements,  and  determined  the  number 
of  copies  to  be  published;  that  he  sold  the  copies  at  a  uniform  price; 
that  none  of  the  defendants  received  a  copy  free,  and  that  he  drew 
no  money  from  the  class  treasury  for  expenses,  or  for  any  of  the  pur- 
poses of  the  publication;  that  thereafter,  at  a  class  meeting,  Arnold 
reported  that  he  had  not  collected  enough  to  pay  the  plaintiffs'  bill, 
and  asked  the  class  to  help  him  out;  and  that  thereupon  the  class 
voted  to  raise  a  certain  sum  of  money  to  help  him  make  up  his  deficit 
to  the  plaintiffs. 

The  defendants  asked  the  judge  to  rule  that  there  was  no  evidence 
to  warrant  a  finding  against  any  of  the  defendants,  except  Arnold. 
The  judge  refused  so  to  rule,  and  found  for  the  plaintiffs  against 
all  of  the  defendants  except  Gifford,  and  found  for  the  defendant 
Gifford. 

Field,  C-.  J.  The  evidence  was  sufficient  to  warrant  the  finding 
of  the  court.  It  was  competent  for  the  court  to  infer  from  all  the 
evidence  that  the  defendants  who  were  present  at  the  class  meeting 
at  which  it  was  voted  to  publish  a  volume  to  be  called  "The  Brown 
and  Blue"  cither  voted  to  publish  the  volume  or  assented  to  the  vote. 
This  is  also  true  of  the  vote  by  which  Arnold  was  elected  "business 
manager  of  the  publication."     The  contract  made  by  Arnold  was 


^ 


SECT.  II]  MEMBERS  .  625 

apparently  within  the  scope  of  his  employment,  at  least  the  court 
could  so  find.  Newell  v.  Borden,  128  Mass.  31.  Ray  v.  Powers, 
134  Mass.  22.  Exceptions  overruled.^ 

RAY  V.  POWERS 
Supreme  Judicial  Court  of  Massachusetts.     1883 

134  Mass.  22 

Bill  in  equity,  by  certain  members  of  the  New  England  Pigeon 
and  Bantam  Society,  a  voluntary  association,  against  Lewis  J. 
Powers  and  Charles  S.  Lincoln,  to  compel  the  defendants,  as  mem- 
bers of  the  society,  to  contribute  their  respective  proportions  of  the 
amount  of  money  lost  on  account  of  a  public  exhibition  of  the  society, 
which  loss  the  plaintiffs  have  been  obliged  to  pay,  and  have  paid  in 
full. 

At  the  hearing  before  W.  Allen,  J.,  William  G.  White,  one  of  the 
plaintiffs  and  the  treasurer  of  the  society,  testified  substantially  as 
follows:  The  New  England  Pigeon  and  Bantam  Society  was  or- 
ganized at  Springfield  on  April  4,  1878,  and  the  persons  mentioned 
in  the  bill  were  members  thereof.  The  object  of  the  society  was  to 
hold  public  exhibitions  of  pigeons  and  bantams,  and  the  awarding 
of  money  premiums  thereat,  by  judges  selected  for  the  purpose. 
The  second  meeting  of  the  society  was  held  on  July  10,  1878,  at 
which  meeting  a  constitution  and  by-laws  were  adopted,  by  vote 
of  the  members  present.^    At  this  meeting,  it  was  also  voted  that  the 

1  In  Lawler  v.  Murphy,  58  Conn.  294,  at  p.  313,  Seymour,  J.,  says:  "The  case  of 
Davison  v.  Holden  was  a  suit  against  certain  individuals  who  were,  in  fact,  the 
president  and  secretary  of  an  unincorporated  association.  This  court  held  that 
'  as  a  matter  of  law  the  plaintiff,  in  giving  credit  to  the  associate  name,  gave  credit 
to  the  individuals  who  upon  inquiry  should  be  found  to  stand  behind  it.'  It  seems 
clear,  without  pursuing  the  subject  further,  that  this  cause  for  demurrer  cannot 
be  sustained.  Individual  members  of  an  unincorporated  association  are  liable  for 
contracts  made  in  the  name  of  the  association,  without  regard  to  the  question 
whether  they  so  intended  or  so  understood  the  law,  and  even  if  the  other  party 
contracted  in  form  with  the  association  and  was  ignorant  of  the  names  of  the 
individual  members  composing  it.  And  it  is  also  held  in  the  case  just  cited,  that 
the  individual  members  of  such  an  association  do  not  acquire  any  immunity  from 
individual  liability  by  force  of  the  statutes  which  provide  that  any  number  of  per- 
sons associated  and  known  by  some  distinguishing  name  may  sue  and  be  sued, 
plead  and  be  impleaded,  by  such  name;  and  that  the  individual  property  of  the 
members  shall  not  be  liable  to  attachment  or  levy  of  execution  in  a  suit  brought 
against  the  association." 

*  The  constitution  and  by-laws  of  the  society  were  put  in  evidence.  Article  2 
of  the  constitution  defined  the  object  of  the  society  to  be  "  to  stimulate  a  healthy 
interest  in  the  breeding  and  management  of  pigeons  and  bantams;  to  disseminate 
useful  knowledge  in  relation  thereto;  and  to  establish  an  authoritative  standard 
of  excellence  for  the  breeding  and  judging  of  pigeons." 

Article  4,  after  defining  the  duties  of  various  officers,  was  as  follows:  "The 
board  of  directors  shall  have  the  general  control  and  management  of  all  the  affairs 
of  the  society,  not  herein  delegated  to  other  officers,  shall  have  charge  of,  and  be 
responsible  for,  all  the  property  of  the  society  except  money  in  the  treasury,  and 


626  LIABILITIES   OF   LABOR   UNION   MEMBERS         [CHAP.  XII 

society  give  a  public  exhibition  in  Springfield  on  December  10,  11, 
12,  and  13,  1878,  and  that  the  control  and  management  of  the  same 
be  referred  to  the  board  of  directors.  At  a  meeting  of  the  society, 
held  on  July  31,  1878,  a  premium  list  of  the  exhibition  was  adopted 
by  vote  of  the  society.  This  premium  list  contained  an  accurate 
statement  of  all  premiums  that  were  offered  and  to  be  awarded  at 
said  exhibition,  and  the  amount  of  money  which  would  be  required 
to  pay  the  same.  It  also  contained  the  rules  which  had  been  adopted 
for  the  management  of  the  exhibition,  and  the  constitution  and  by- 
laws of  the  society.  At  this  meeting,  the  defendant  Lincoln  was 
present,  and  joined  the  association.  A  copy  of  this  premium  list 
was  sent  to  every  member  of  the  association  as  soon  as  printed,  which 
was  directly  after  this  meeting.  The  defendant  Lincoln  acted  as 
judge  at  the  exhibition  referred  to,  and  awarded  a  part  of  the  pre- 
miums offered  in  said  premium  list. 

White  also  testified  that  he  personally  requested  the  defendant 
Powers  to  join  the  society,  informed  him  that  there  was  to  be  a 
public  exhibition  at  the  time  before  stated,  and  desired  his  assist- 
ance at  said  exhibition;  that  he  told  Powers  the  amount  which  had 
been  offered  for  premiums  and  the  probable  expenses  of  the  exhibition, 
and  sent  him  a  copy  of  the  premium  list;  that  Powers  objected  to 
joining  the  society  because  it  was  not  incorporated,  and  because  he 
would  be  personally  responsible  in  case  of  loss;  that  the  witness 
told  Powers  that  the  society  had  voted  to  instruct  the  president  to 
procure  an  incorporation  of  the  society,  and,  after  it  was  incorporated, 
there  would  be  no  personal  liability;  that  Powers  consented  to  be- 
come a  member  of  the  association,  and  that  no  meeting  of  the  society 
was  held  after  he  became  a  member. 

White  also  testified  that  no  record  was  kept  by  the  secretary  of 
the  doings  of  the  society  at  its  various  meetings;  that  the  exhibition 
was  held  under  the  management  of  the  board  of  directors,  and  re- 
sulted in  great  loss,  and  the  plaintiffs  had  paid  the  same;  that, 
previous  to  the  exhibition,  a  subscription  paper  to  raise  a  fund  to 
guarantee  the  society  against  loss  was  subscribed  by  a  few  members 
of  the  society,  and  by  a  number  of  persons  who  were  not  members 
thereof,  but  the  money  thus  raised  was  not  sufficient  to  pay  the  loss; 
and  that  the  money  paid  by  the  plaintiffs  was  almost  entirely  in  pay- 
ment of  the  premiums  awarded  at  said  exhibition. 

Lincoln  testified  that  he  received  by  mail  a  copy  of  the  premium 
list  referred  to  after  it  was  printed,  but  did  not  read  it,  and  was  not 
familiar  with  its  contents  until  a  few  days  before  the  exhibition;  that 
he  had  no  knowledge  of  the  provisions  of  the  constitution  and  by- 
laws prior  to  its  reception  by  mail,  and  prior  to  his  becoming  a  mem- 
shall  have  the  charge  and  management  of  any  and  all  ptihlic  cxhiliitions  of  the 
society." 

Article  5  provided  for  the  election  of  ni('inl)er.s,  and  also  for  tho  payment  by 
each  member  of  an  initiation  fee  of  $'.i,  and  an  annual  assessment  of  $2. 


SECT.  II]  MEMBERS  627 

ber;  that  he  acted  as  judge  at  said  exhibition  at  the  request  of  the 
officers  of  the  society;  and  that  he  had  before  acted  in  the  same 
capacity  at  other  exhibitions  of  other  societies. 

Powers  testified  that  he  joined  the  society,  if  he  joined  it  at  all, 
some  time  during  October  or  November,  1878;  that,  after  the  con- 
versation testified  to  by  White,  he  consented  to  have  him  present 
his  name  for  membership,  and  paid  him  the  initiation  fee  of  S3 ;  that 
he  had  no  recollection  of  receiving  the  premium  list  and  constitution 
and  by-laws  referred  to;  that  he  never  received  any  notice  of  a 
meeting  of  the  society,  and  never  attended  any;  that  he  took  no 
part  in  the  exhibition,  but  attended  it,  and  paid  his  admission  fee 
thereto  the  same  as  others  did. 

The  judge  ruled  that  the  evidence  was  not  competent  and  sufficient 
to  maintain  the  bill;  ordered  that  the  bill  be  dismissed;  and,  at 
the  plaintiffs'  request,  reported  the  case  for  the  determination  of  the 
full  court.  If  the  ruling  was  correct,  the  decree  was  to  be  affirmed; 
otherwise,  such  decree  to  be  entered  as  the  court  might  direct. 

C.  Allen,  J.  This  bill  was  dismissed  on  the  ground  that  the  evi- 
dence was  not  competent  and  sufficient  to  maintain  it.  But,  upon 
consideration,  we  think  the  evidence  might  have  warranted  a  decision 
for  the  plaintiffs,  as  against  both  of  the  defendants.  It  is  true  that 
neither  the  constitution  nor  the  by-laws  of  the  society  provide  for 
holding  exhibitions  with  premiums,  or  for  any  further  liability  on 
the  part  of  the  members  than  for  the  payment  of  the  initiation  fee 
and  annual  assessment.  But  it  was  not  inconsistent  with  the  pur- 
poses of  the  society,  as  shown  by  the  constitution,  to  hold  exhibitions 
and  award  premiums.  Mere  membership  would  not  bind  anybody 
for  any  further  pajnnent  than  the  initiation  fee  and  annual  assess- 
ment; but  such  members  as  participated  in  a  vote  to  incur  further 
expenses  for  an  exhibition  with  premiums,  or  as  assented  to  be  bound 
by  such  vote,  would  be  bound  thereby.  It  therefore  became  a  ques- 
tion of  fact  whether  either  or  both  of  the  defendants  so  participated 
or  assented.  It  was  not  necessary  to  prove  such  participation  or 
assent  by  formal  records.  Newell  v.  Borden,  128  Mass.  31,  34.  The 
testimony  introduced  was  competent,  and  its  sufficiency  should  be 
determined  as  a  question  of  fact. 

Case  to  stand  for  a  further  hearinq. 


HORNBERGER  v.  ORCHARD 

Supreme  Court  of  Nebraska.     1894 

39  Neb.  639 

Ragan,  C.  Samuel  A.  Orchard  sued  the  plaintiffs  in  error  and 
forty-five  others  in  the  District  Court  of  Douglas  county,  and  in 
his  petition  alleged  that  on  the  17th  of  September,  1887,  the  parties 
made  defendants  were  members  of  an  unincorporated  association 


628  LIABILITIES   OF   LABOR   UNION   MEMBERS  [CHAP.  XII 

known  as  the  Junior  Order  of  United  American  Mechanics,  organized 
for  social  and  recreative  purposes  only,  and  not  for  the  holding  of  any 
property  or  the  carrjdng  on  of  any  trade  or  business;  that  prior  to 
the  17th  day  of  September,  1887,  the  defendants,  at  a  meeting  of 
said  association,  ordered  that  carpets,  matting,  and  shades  be  pro- 
cured and  placed  in  a  hall  for  the  use  of  the  association;  and  that 
Orchard  did,  on  the  17th  day  of  September,  1887,  furnish  said  hall 
for  the  defendants'  use,  with  certain  carpets,  matting,  and  shades, 
and  performed  the  necessary  work  and  labor  of  placing  the  same  in 
said  hall;  that  said  defendants  then  and  there  accepted  the  said 
carpets,  matting,  and  shades  in  said  hall,  and  for  a  long  time  there- 
after used  the  same  therein,  and  repeatedly  promised  to  pay  therefor; 
and  that  the  bill  was  past  due  and  wholly  unpaid.  The  plaintiffs 
in  error  filed  separate  answers,  each  consisting  of  a  general  denial. 
There  was  a  verdict  and  judgment  against  the  plaintiffs  in  error,  who 
bring  the  case  here  for  review. 

In  the  petition  in  error  on  file  there  are  thirty-one  errors  assigned, 
only  two  of  which  we  shall  notice. 

1.  The  plaintiffs  in  error  complain  because  of  the  refusal  of  the 
court  to  give  the  sixth  instruction  asked  for  by  them.  That  instruc- 
tion was  as  follows:  "If  you  find  that  the  goods  were  sold  either  to 
a  committee  for  the  use  of  the  society  known  as  the  Junior  Order  of 
United  American  Mechanics,  and  the  credit  was  given  either  to  said 
committee  or  even  to  the  Junior  Order  of  United  American  Mechanics, 
no  person  who  was  not  liable,  either  as  principal  or  agent,  at  the 
time  of  sale  or  when  credit  was  given  can  be  made  so  by  any  promise 
or  words  of  his  that  was  not  in  writing,  and  although  if  each  of  these 
said  defendants  not  so  primarily'  liable  had  promised  and  agreed  to 
pay  this  bill,  or  any  part  thereof,  he  cannot  be  held  thereto  unless 
such  promise  was  in  writing;  the  statute  of  frauds  in  our  state  being 
that  no  person  can  become  liable  for  the  debt  of  another  person  or 
persons  unless  the  same  shall  be  in  writing  and  subscribed  to  by  the 
party  sought  to  be  charged  therewith."  This  society  was  an  unin- 
corporated voluntary  association,  supported  b}'^  the  initiation  fees 
and  dues  charged  its  members,  and  the  liability  of  its  members  to 
its  creditors  are  governed  by  the  law  of  agency.  (Gorman  v.  Russell, 
14  Cal.  532;  Moore  v.  Brink,  4  Hun  [N.  Y.],  402;  Butterfield  v. 
Bcardsley,  28  Mich.  412;  Tyrrell  v.  Washburn,  88  Mass.  466;  Bul- 
lard  V.  Kinney,  10  Cal.  60;  Taft  v.  Ward,  106  Mass.  518;  Bodwell 
V.  Eastman,  106  Mass.  525;  Davison  v.  Holden,  55  Conn.  103;  Tap- 
pan  V.  Bailey,  45  Mass.  529;  Park  v.  Spaulding,  10  Hun  [N.  Y.],  128.) 
It  will  be  observed  that  Orchard  ])ased  his  right  to  recover  of  plain- 
tiffs in  error  on  the  ground  that  they  were  members  of  the  society 
and  present  at  the  meeting  when  the  goods  were  ordered,  or  after- 
wards leariKul  of  the  purchase;  that  the  ImII  was  unpaid;  attended 
meetings  at  whicii  the  payment  was  discussed,  acknowledged  to  be 
correct,  and  promised  to  bo  paid,  and  theroljy  ratified  the  contract 


SECT.  II]  MEMBERS  629 

of  the  society  in  purchasing  the  goods,  even  if  they,  the  plaintiffs 
in  error,  were  not  present  at  the  meeting  at  which  the  purchase  was 
ordered.  Under  the  pleadings,  oral  testimony  that  plaintiffs  in  error 
promised  to  pay  this  bill  would  not  have  been  competent,  except 
upon  the  theory  that  they  were  members  of  the  society  when  the 
debt  was  contracted.  But  there  was  testimony  which  tended  to 
show  that  the  plaintiffs  in  error  were  members  of  the  society  and 
present  at  the  meeting  at  which  the  goods  were  ordered;  and  there 
was  also  testimony  which  tended  to  show  that  after  the  goods  were 
purchased  and  in  the  hall,  plaintiffs  in  error  were  present  at  meet- 
ings of  the  society  at  which  the  payment  of  the  bill  for  the  goods  was 
discussed,  its  correctness  acknowledged,  and  payment  promised. 
This  testimony  was  competent  under  the  issues.  The  question  then 
at  which  this  instruction  was  aimed  was  not  one  of  the  statute  of 
frauds,  but  of  agency;  the  plaintiff's  theory  being  that  even  if  the 
plaintiffs  in  error  were  not  present  at  the  meeting  when  the  goods  were 
bought,  yet  being  members  at  that  time,  and  afterwards  learning  of 
the  purchase  and  promising  to  pay  it,  they  had  ratified  what  the 
society  did.  There  was  no  error  then  in  refusing  to  give  this  instruc- 
tion. Again,  if  the  pleadings  of  the  plaintiff  had  sought  to  hold 
the  plaintiffs  in  error  liable  for  this  bill  by  an  allegation  that  they 
were  not  members  of  the  society  when  it  was  contracted,  but  joined 
the  society  afterwards  and  then  promised  to  pay  it,  the  plaintiffs  in 
error,  to  have  availed  themselves  of  the  statute  of  frauds  as  a  defense, 
must  have  pleaded  it. 

2.  The  plaintiffs  in  error  also  complain  because  of  the  refusal  of 
the  court  to  give  the  thirteenth  instruction  asked  for  by  them.  It 
was  as  follows:  "None  of  these  defendants,  by  becoming  members 
of  the  Junior  Order  of  United  American  Mechanics,  became  liable 
for  any  of  the  past  indebtedness  that  had  been  incurred,  or  was  owing 
by  said  association,  or  by  any  member  or  committee  thereof,  prior 
to  the  time  he  associated  himself  therewith."  Were  the  plaintiffs 
in  error  entitled  to  have  this  instruction  given  to  the  jury,  and  was 
the  refusal  of  the  court  to  give  it  error?  This  instruction  presented 
the  question  squarely  as  to  whether  these  plaintiffs  in  error  were 
liable  for  the  debts  of  the  association  contracted  prior  to  the  time 
they  became  members  of  it.  Nowhere  in  the  trial  of  this  case,  nor 
in  the  instructions  given  by  the  learned  court,  was  the  distinction 
drawn  as  to  the  liability  of  these  plaintiffs  in  error,  as  asked  for  b}^ 
this  instruction.  Indeed,  the  court,  by  its  instructions,  told  the 
jury  substantially  that  any  defendant  who  was  a  member  of  the 
order  (without  reference  to  the  time  when  he  became  such)  and  at- 
tended its  meeting,  and  knew  of  the  purchase  of  the  goods  in  question, 
and  used  said  goods  after  they  were  placed  in  the  hall,  knowing  that 
they  had  not  been  paid  for,  became  liable.  The  testimony  as  to 
whether  the  plaintiffs  in  error  were  members  of  the  society  when 
the  goods  w^ere  purchased  was  very  contradictory.    It  is  not  denied 


630  LIABILITIES    OF    LABOR   UNION    MEMBERS  [CHAP.  XII 

that  the  plaintiffs  in  error  were  mtimbers  of  the  society,  but  there 
was  much  testimony  tending  to  show  that  they  did  not  become 
members  until  after  the  purchase  of  the  goods.  The  plaintiffs  in 
error  were  entitled  to  an  instruction  to  the  effect  that  their  liability 
did  not  attach  for  any  debts  of  the  societ}^  prior  to  the  date  of  their 
becoming  members  or  it;  and  nowhere  in  the  record  was  there  any 
such  instruction  given;  and,  as  before  observed.  Orchard  based  his 
right  to  hold  the  plaintiffs  in  error  liable  on  the  theory  that  they 
were  members  of  the  society  when  the  goods  were  purchased.  The 
charges  of  the  court  and  the  instructions  given  by  him  at  the  request 
of  the  plaintiff  left  room  for  the  jury  to  infer  that  if  the  plaintiffs  in 
error  became  members  after  the  debt  was  contracted,  and  then  at- 
tended meetings  of  the  society  at  which  the  debt  was  spoken  of, 
acknowledged  to  be  unpaid,  and  promises  made  to  pay  it,  the  plain- 
tiffs in  error  thereby  ratified  and  became  liable  to  pay  for  what  the 
society  had  done  before  they  joined  it.  No  member  of  a  voluntary 
unincorporated  association  is  liable  for  any  debt  contracted  by  such 
society,  unless  at  the  time  the  debt  was  incurred  he  was  a  member 
thereof,  except  by  an  express  contract,  based  on  a  good  consideration, 
all  which  must  be  alleged  and  proved.  There  is  sufficient  testimony 
in  the  record  for  the  jury  to  have  found  that  the  plaintiffs  in  error 
were  members  of  the  society  when  the  debt  was  contracted.  On 
the  other  hand,  there  was  abundant  evidence  to  support  a  finding 
that  they  were  not  members  at  the  time  the  debt  was  contracted, 
and  the  instructions  of  the  court  left  ample  room  for  them  to  infer 
that  the  plaintiffs  in  error  had  become  liable,  even  if  they  joined  the 
society  after  the  debt  was  contracted,  by  attending  its  meetings  after 
that  time  at  which  the  debt  was  discussed  and  promised  to  be  paid. 
It  is  impossible  for  us  to  say  whether  the  jury's  finding  is  predicated 
upon  the  evidence  that  the  plaintiffs  in  error  were  members  at  the 
time  the  debt  was  contracted,  or  whether  it  is  predicated  upon  the 
evidence  that  they  attended  meetings  after  it  was  contracted  at 
which  the  debt  was  discussed  and  promises  made  to  pay  it. 

The  authorities  cited  by  the  defendant  in  error,  none  of  them,  reach 
the  point  raised  by  this  instruction.  In  all  the  cases  cited  by  him 
the  parties  sued  were  members  of  the  association  at  the  time  the 
debt  was  contracted,  and,  so  far  as  appears  from  the  reported  cases, 
that  was  not  a  disputed  question  on  the  trial.  We  are  constrained  to 
say,  after  much  reflection  and  research,  that  the  plaintiffs  in  error 
were  entitled  to  have  the  instruction  asked  for  given  to  the  jury, 
and  its  refusal  was  error  to  their  prejudice.  The  judgment  of  the 
court  below  is  therefore  reversed  and  the  cause  remanded  to  that 
court  to  grant  the  plaintiffs  in  error  a  new  trial. 

Reversed  and  remanded. 


SECT.  II]  MEMBERS  '  631 

VREDENBURG  v.  BEHAN 

Supreme  Court  of  Louisiana.     1881 

33  La.  Ann.  627 

The  opinion  of  the  court  was  delivered  by 

Todd,  J.  Mrs.  V.  Vredenburg,  in  her  own  behalf  as  the  widow  of 
William  Hazard  Vredenburg,  deceased,  and  as  tutrix  of  his  minor 
children,  brings  this  suit  against  the  defendants,  and  claim  from  them 
in  solido  fifty-five  thousand  dollars  damages.  .  .  . 

The  case  was  tried  by  a  jury,  and  from  a  verdict  and  judgment 
against  them  in  solido  for  fifteen  thousand  dollars,  the  defendants 
have  appealed.  .  .  , 

1.  The  facts  out  of  which  this  controversy  grew  are,  substantially, 
as  follows: 

The  defendants  were  members  of  an  association  or  society  known 
as  the  Crescent  City  Rifle  Club. 

In  July,  1877,  the  club,  wishing  to  send  some  of  its  members  North 
to  participate  in  an  inter-State  rifle  shooting  match,  about  to  take 
place  in  New  York,  for  the  purpose  of  providing  means  therefor, 
concluded  to  give  an  entertainment  at  Milneburg,  on  Lake  Pont- 
chartrain.  The  Continental  Guards,  a  military  company  of  the  city 
of  New  Orleans,  to  further  the  object  in  view,  and  as  a  contribution 
to  the  proposed  entertainment,  offered  to  the  club  a  bear,  owned  by 
the  officers  of  the  company,  "as  a  prize  to  be  shot  for"  on  the  occasion. 
The  offer  was  accepted,  and  a  member  of  the  club  was  instructed  to 
make  the  necessary  arrangements  for  shooting  for  the  bear. 

The  entertainment  came  off  on  the  3d  of  August,  1877;  the  bear 
was  brought  on  the  ground  and  was  offered  as  a  prize,  as  previously 
arranged.  He  was  won  by  William  Arms,  a  member  of  the  club, 
and  one  of  the  defendants.  Arms  put  him  up  again  to  be  shot  for, 
and  this  time  he  was  won  by  another  person,  who,  however,  declined 
to  claim  the  prize.  Arms  had  the  bear  taken  to  the  grounds  of  the 
club,  and  caused  him  to  be  chained  to  the  corner  of  the  club-house; 
and  there  the  bear  remained  until  the  30th  of  October,  1877.  These 
grounds  had  been  leased  by  the  club,  and  the  house  erected  by  it 
belonged,  by  the  terms  of  their  charter,  to  the  members  of  the  club. 

The  pasture  of  Mr.  Vredenburg,  who  was  engaged  in  a  dairy  busi- 
ness, adjoined  the  grounds  of  the  rifle  club,  and  he  and  his  employees 
in  going  to  and  from  the  pasture  passed  through  these  club  grounds. 
On  the  evening  of  the  30th  of  October,  Mr.  Vredenburg  went  to  the 
pasture  after  his  cows.  A  short  time  thereafter,  as  he  was  returning 
from  the  pasture,  he  was  attacked  by  the  bear,  which  in  the  mean- 
time had  gotten  loose,  and  received  the  injuries  of  which  he  sub- 
sequently died.  Tetanus  or  locked-jaw  supervened,  attended  with 
great  suffering,  and  his  death  occurred  on  the  27th  November, 
twenty-one  days  after  the  wounds  were  inflicted.  .  .  . 


632  LIABILITIES   OF   LABOR   UNION   MEMBERS         [CHAP.  XII 

3.  Another  defense  urged  against  the  plaintiff's  right  to  recover, 
is  that  the  defendants  are  sued  in  their  individual  capacity,  as  ad- 
mitted in  the  record,  and  cannot  be  held  liable  for  acts  done  as  mem- 
bers of  a  society,  and  as  stockholders  in  a  corporation  known  as  "the 
Crescent  City  Rifle  Club." 

According  to  the  language  of  the  petition,  fairly  construed,  and 
the  admissions  in  the  record,  the  suit  is  against  the  defendants  as 
individuals,  and  they  are  not  sought  to  be  made  responsible  as  mem- 
bers of  a  corporation  or  because  of  such  membership.  Their  being 
designated  and  referred  to  as  members  of  this  rifle  club,  may  be  re- 
garded as  descriptive,  and  at  the  same  time  as  bearing  directly  on 
the  causes  and  motives  that  led  to  the  acts  and  negligences  charged 
against  them.  It  might  be  argued,  and  it  is  in  fact  urged  by  plaintiff's 
counsel,  that  keeping  a  bear  or  other  wild  animal  was  not  one  of  the 
objects  for  which  the  association  or  alleged  corporation  in  question 
was  formed,  was  not  within  the  scope  or  purposes  of  its  organization; 
and  that  it  is  only  for  acts  done  or  omitted  by  a  corporation  in  its 
corporate  capacity,  and  within  the  limitation  suggested,  that  it  is 
bound;  and  that,  if  the  members  of  such  corporation  are  guilty  of 
acts  of  commission  or  omission  entirely  foreign  to  the  purposes  of  the 
corporation,  and  not  connected  with  their  duties  as  officers  or  mem- 
bers of  such  body,  they,  the  members,  become  personally  and  in- 
dividually liable.  .  .  . 

Article  446  C.  C.  provides: 

"Corporations  unauthorized  by  law  or  by  an  act  of  the  Legislature 
enjoy  no  public  character,  and  cannot  appear  in  a  court  of  justice, 
but  in  the  individual  name  of  all  the  members  who  compose  it,  and 
not  as  a  political  body;  although  these  corporations  may  acquire  and 
possess  estates,  and  have  common  interests  as  well  as  other  private 
societies." 

Was  this  rifle  club  a  corporation  authorized  by  law? 

It  was  not  chartered  by  a  special  act  of  the  Legislature,  but  claims 
its  existence  as  a  corporate  body  under  the  provisions  of  sec.  677  of 
the  Revised  Statutes  of  1870,  authorizing  the  creation  of  corpora- 
tions for  literary,  scientific,  and  charitable  purposes.  .  .  . 

After  a  careful  examination  of  the  authorities  that  offered  light 
on  the  subject,  we  are  constrained  to  conclude  that  the  declared 
object  of  the  association  in  question  does  not  fall  within  the  purview, 
the  letter  or  the  spirit  of  the  law  relied  on;  that  the  act  of  incorpora- 
tion for  such  purpose  was  unauthorized  by  law,  produced  no  legal 
effect  and  conferred  no  legal  right.  In  other  words,  we  cannot, 
by  any  reasonable  rule  of  construction,  term  "rifle  shooting"  a 
science.  .  .  . 

The  Crescent  City  Rifle  Club  never  had  a  corporate  existence. 
To  give  it  or  decree  it  one  would  be  to  pervert  the  plain  intent  of  the 
law. 


SECT.  II]  MEMBERS  633 

Reaching  this  condusion,  we  must  regard  this  club  as  a  voluntary 
association  of  persons,  and  their  rights  and  responsibilities  must  be 
tested  and  determined  by  the  same  rules  that  apply  to  individuals  or 
members  of  a  private  society.  Thus,  the  use  of  the  club  grounds 
and  the  club  building  and  their  appurtenances  belonged  jointly  to 
the  individual  members,  and  such  joint  proprietorship  imposed 
correlative  duties  and  responsibilities.  .  .  . 

The  salient  facts  of  the  case,  and  upon  which  our  conclusions 
mainly  rest,  summarized  from  the  statement  heretofore  given,  are 
these : 

That  the  bear  was  accepted  by  the  rifle  club  as  a  prize  to  be  shot 
for  under  the  auspices  of  the  club,  and  to  raise  a  fund  for  the  purposes 
of  the  club;  that  it  was  shot  for,  and  subsequently  carried  to  the 
club  grounds  by  the  direction  of  a  member  of  the  club  and  one  of 
the  defendants;  that  it  was  kept  there  and  fed  there  for  nearly  three 
months  by  an  employee  of  the  club,  and  the  expenses  for  its  keeping 
and  feeding  paid  for  by  the  treasurer  of  the  club,  and  an  account  of 
such  expenses  submitted  to  the  governing  committee  of  the  club,  of 
which  some  of  the  defendants  were  members;  that  it  was  seen  from 
time  to  time  at  the  club  house  by  members  of  the  club  and  by  all  of 
the  defendants  save  one;  that  no  one  objected  to  his  being  there; 
that  whilst  thus  kept  on  the  club  grounds  in  charge  of  a  keeper,  he 
broke  loose,  attacked  and  wounded  Mr.  Vredenburg,  who  died  of 
the  wounds  inflicted. 

The  Code  declares,  "that  every  act  whatever  of  man  that  causes 
damage  to  another  obliges  him  by  whose  fault  it  happened  to  repair 
it." 

That  a  person  is  responsible  for  the  damage  resulting  from  "his 
negligence  or  imprudence."  That  he  is  answerable,  not  only  for  his 
own  acts,  but  for  the  acts  of  persons  for  whom  he  is  responsible,  and 
of  things  in  his  custody.    C.  C.  2315,  2316,  2317,  2321. 

The  law  upon  this  subject  is  to  the  same  effect  under  every  en- 
lightened system  of  jurisprudence.  .  .  . 

"The  owner  of  wild  and  savage  beasts,  such  as  lions,  tigers,  wolves, 
bears,  etc.,  if  he  neglects  to  keep  them  properly  secured,  is  liable 
for  injuries  committed  by  them  according  to  their  nature,  without 
any  evidence  that  he  knew  them  to  be  ferocious,  or  that  he  was  neg- 
hgent  in  the  mode  of  keeping  them,  since  he  is  bound  in  ordinary 
prudence,  to  know  that  fact  and  to  secure  them  from  doing  harm." 
Sherman  and  Redfield  on  Negligence,  sec.  188. 

"One  who  harbors  a  dangerous  animal  on  his  premises,  though 
not  his  owner  in  any  sense,  is  nevertheless  responsible  for  injuries 
committed  by  it  while  on  or  near  his  premises,  to  the  same  extent 
as  if  he  owned  it."  Sherman  and  Redfield  on  Negligence,  pp.  227, 
228.  .  .  . 

There  is  a  recognition  of  their  spirit  in  an  ordinance  of  the  City  of 
New  Orleans  on  the  subject,  which  declares: 


634  LIABILITIES    OF   LABOR   UNION   MEMBERS  [CHAP.  XII 

"No  wild  or  ferocious  animals  shall  be  kept  within  the  limits  of 
the  city,  on  the  premises  of  individuals,  or  in  menageries,  unless 
such  animals  be  under  the  charge  of  an  armed  guard  day  and  night." 

Leovj^'s  City  Laws  and  Ordinances,  Art.  703. 

And  it  is  to  be  noted  that  this  bear  was  kept  on  the  club  grounds, 
within  the  city  limits,  in  open  disregard  of  this  ordinance.  .  .  . 

Proprietors  or  co-proprietors  of  lands  or  houses  must  not  permit 
their  property  to  be  put  to  such  uses  as  to  cause  injury  to  others, 
whether  by  being  made  a  refuge  for  noxious  animals  or  a  magazine 
for  gunpowder,  dynamite  or  other  explosive  substances,  or  as  a 
generator  of  foul  and  pestilential  vapors  destructive  of  health.  .  .  . 

It  is,  however,  urged  in  behalf  of  one  of  the  defendants,  W.  J. 
Behan,  as  sufficient  to  free  him  from  any  liability,  that  he  did  not 
know  that  the  bear  was  on  the  premises.  Under  the  circumstances 
of  this  case  we  cannot  give  such  effect  to  this  fact;  nor  do  we  con- 
sider it  as  having  any  real  bearing  on  the  question  of  his  liability. 

This  club  was  composed  of  many  individuals;  it  had  a  complete 
organization,  with  regular  officers,  governing  committee,  keeper  of 
the  grounds,  etc.  The  defendant  referred  to  was  the  head  or  chief 
of  the  association.  Of  course  from  the  nature  and  objects  of  the 
organization  it  was  not  contemplated,  nor  was  it  possible  that  all 
the  members  thereof,  the  owners  of  the  club-house  and  lessees  of  the 
grounds  should  occupy  the  property;  and,  therefore,  it  was  neces- 
sarily placed  in  the  control  and  keeping  of  employees  of  the  club, 
who  were  charged  with  its  management,  and  with  the  proper  police 
and  superintendence  of  the  club-house  and  grounds,  and  generally 
with  the  same  duties  that  the  owners  themselves  were  subject  to, 
and  who  in  this  respect  represented  the  owners,  who  were  legally 
responsible  for  the  acts  and  omissions  of  such  keeper  or  keepers. 
Nor  can  the  fact  of  knowledge  or  ignorance  of  the  employers  touch- 
ing such  acts  or  omissions  on  the  part  of  the  employee,  restrict  or 
enlarge  that  responsibility.  It  is  a  case  where  the  principle  of  re- 
spondeat superior  applies  to  its  full  extent. 

A  reference  to  the  authorities  on  this  subject  leaves  no  room  for 
doubt  on  this  point.  Thus  a  distinguished  law  writer  has  declared 
that  "the  master  is  liable  for  the  acts  of  his  servants,  not  only  when 
they  are  directed  by  him,  but  also  when  the  scope  of  his  employment 
or  trust  is  such  that  he  has  been  left  at  liberty  to  do,  while  pursuing  or 
attempting  to  discharge  it,  the  injurious  act  complained  of.  It  is  not 
merely  for  the  wrongful  acts  he  was  directed  to  do,  but  the  wrongful 
acts  he  was  suffered  to  do,  that  the  master  must  respond."  .  .  . 
Cooley  on  Torts,  pp.  534,  538,  539,  540,  549,  562;  Sherman  &  Red- 
field  on  Negligence,  sec.  59;  14  Howard,  468;  15  Ark.  118;  36  Vt. 
248;   11  Minn.  277;  98  Mass.  567. 

The  acts  and  negligence  on  the  part  of  the  keeper  of  the  grounds 
and  the  club-house,  first,  in  receiving  the  bear  on  the  premises,  keep- 


SECT.  II]  MEMBERS  635 

ing  him  there  for  months,  and  suffering  him  to  get  loose,  were  all 
within  the  scope  of  his  emplojonent,  and  related  directly  to  the  duties 
with  which  he  stood  charged  under  his  employment  to  properly 
manage  and  police  the  property,  and  bound  him  to  exclude  there- 
from all  things  that  might  cause  injury  to  others,  or  if  anything  dan- 
gerous was  admitted,  then  at  least  to  use  such  care  and  precautions 
as  to  render  any  injury  therefrom  impossible,  and  this  brings  the 
case  clearly  within  the  meaning  and  intendment  of  the  authorities 
we  have  cited.  .  .  . 

It  is,  therefore,  ordered,  adjudged  and  decreed  that  the  judgment 
appealed  from  in  case  of  Mrs.  V.  Vredenburg  v.  W.  J.  Behan  et  al., 
No.  7573,  on  the  docket  of  this  Court,  be  amended  by  reducing  the 
amount  therein  decreed  against  the  defendants  W.  J.  Behan,  John 
Glynn,  Jr.,  George  Howe,  Dudley  Selph,  William  Arms,  and  William 
Pierce  to  seven  thousand  five  hundred  dollars;  .  .  .  and  as  thus 
amended  it  be  affirmed,  defendants  to  pay  costs  of  the  lower  court 
and  plaintiff  of  the  appeal  in  said  case.  .  .  . 

Bermudez,  C.  J.  Whatever  may  be  the  responsibility  which 
attaches  to  owners  of  property  for  the  wrongful  use  of  the  same  by 
employees  entrusted  with  the  keeping  thereof,  I  do  not  think  that 
it  fastens  when  the  owner  had  not  the  exclusive  control  of  the  prop- 
erty, or  having  such,  was  absent,  unaware  of  such  use,  unable  to 
prevent  it,  and  when  such  use  was  not  done  in,  but  out  of,  the 
course  of  the  legitimate  functions  or  line  of  the  duties  of  such  sub- 
ordinates, and  was  not  sanctioned  and  ratified,  and  could  not  even 
have  been  foreseen. 

I  think  the  allowance  too  large,  unless  the  fact  of  death,  which  is 
entitled  to  no  consideration,  assist  in  the  computation  and  assess- 
ment. 

I  therefore  dissent  from  the  decree. 

PocHE,  J.  .  .  .  I  also  earnestly  differ  from  the  opinion  of  the 
majority  in  visiting  liability  on  W.  J.  Behan,  who  is  shown  to  have 
been  absent  from  the  State  when  the  bear,  after  it  had  been  shot  for 
and  thus  disposed  of  by  the  club,  was  brought  back  to  the  club 
grounds  and  kept  there  until  the  day  of  the  accident  without  Behan's 
knowledge  or  consent;  and,  therefore,  without  any  opportunity  on 
his  part  to  protest  against  the  presence  and  keeping  of  the  animal 
on  the  grounds  and  thus  to  prevent  the  catastrophe  which  brought 
about  this  litigation. 

For  these  reasons  I  dissent  from  the  opinion  and  decree  rendered 
in  this  case.^ 

1  Compare  Ing  lis  v.  Millersburg  Driving  Assn.,  169  Mich.  311. 


636  LIABILITIES    OF    LABOR    UNION    MEMBERS  [CHAP.  XII 

LAWLOR  V.  LOEWE 

Supreme  Court  of  the  United  States.     1915 

235  U.  S.  522 

Mr.  Justice  Holmes  delivered  the  opinion  of  the  court. 

This  is  an  action  under  the  act  of  July  2,  1890,  c.  647,  sec.  7,  26 
Stat.  209,  210,  for  a  combination  and  conspiracy  in  restraint  of 
commerce  among  the  States,  specifically  directed  against  the  plain- 
tiffs (defendants  in  error),  among  others,  and  effectively  carried 
out  with  the  infliction  of  great  damage.  The  declaration  was  held 
good  on  demurrer  in  Loewe  v.  Lawlor,  208  U.  S.  274,*  where  it  will 
be  found  set  forth  at  length.  The  substance  of  the  charge  is  that 
the  plaintiffs  were  hat  manufacturers  who  emplo3^ed  non-union 
labor;  that  the  defendants  were  members  of  the  United  Hatters  of 
North  America  and  also  of  the  American  Federation  of  Labor;  that 
in  pursuance  of  a  general  scheme  to  unionize  the  labor  employed  by 
manufacturers  of  fur  hats  (a  purpose  previously  made  effective 
against  all  but  a  few  manufacturers),  the  defendants  and  other 
members  of  the  United  Hatters  caused  the  American  Federation  of 
Labor  to  declare  a  boycott  against  the  plaintiffs  and  against  all  hats 
sold  by  the  plaintiffs  to  dealers  in  other  states  and  against  dealers 
who  should  deal  in  them;  and  that  they  carried  out  their  plan  with 
such  success  that  they  have  restrained  or  destroyed  the  plaintiff's 
commerce  with  other  states.  The  case  now  has  been  tried,  the  plain- 
tiffs have  got  a  verdict  and  the  judgment  of  the  District  Court  has 
been  affirmed  by  the  Circuit  Court  of  Appeals.  209  Fed.  Rep.  721; 
126  C.  C.  A.  445.  ..  . 

It  requires  more  than  the  blindness  of  justice  not  to  see  that  many 
branches  of  the  United  Hatters  and  the  Federation  of  Labor,  to 
both  of  which  the  defendants  belonged,  in  pursuance  of  a  plan  emanat- 
ing from  headquarters  made  use  of  such  lists,  and  of  the  primary 
and  secondary  boycott  in  their  effort  to  subdue  the  plaintiffs  to  their 
demands.  The  union  label  was  used  and  a  strike  of  the  plaintiffs' 
employes  was  ordered  and  carried  out  to  the  same  end,  and  the 
purpose  to  break  up  the  plaintiffs'  commerce  affected  the  quality  of 
the  acts.  Loewe  v.  Lawlor,  208  U.  S.  274,  299.  We  agree  with  the 
Circuit  Court  of  Appeals  that  a  combination  and  conspiracy  for- 
bidden by  the  statute  were  proved,  and  that  the  question  is  narrowed 
to  the  responsibility  of  the  defendants  for  what  was  done  by  the  sanc- 
tion and  procurement  of  the  societies  above  named. 

The  court  in  substance  instructed  the  jury  that  if  these  members 
paid  their  dues  and  continued  to  delegate  authority  to  their  officers 
unlawfully  to  interfere  with  the  plaintiffs'  interstate  conunerce  in 
such  circumstances  that  they  knew  or  ought  to  have  known,  and 
such  officers  were  warranted  in  the  belief  that  they  were  acting  in 
*  See  supra,  p.  121.  —  Ed. 


SECT.  II]  MEMBERS  637 

the  matters  within  their  delegated  authority,  then  such  members 
were  jointly  liable,  and  no  others.'  It  seems  to  us  that  this  instruc- 
tion sufficiently  guarded  the  defendants'  rights,  and  that  the  de- 
fendants got  all  that  they  were  entitled  to  ask  in  not  being  held 
chargeable  with  knowledge  as  matter  of  law.  It  is  a  tax  on  credulity 
to  ask  anyone  to  believe  that  members  of  labor  unions  at  that  time 
did  not  know  that  the  primary  and  secondary  boycott  and  the  use 
of  the  "  We  don't  patronize  "  or  "  Unfair  "  list  were  means  expected 
to  be  employed  in  the  effort  to  unionize  shops.  Very  possibly  they 
were  thought  to  be  lawful.  See  Gompers  v.  United  States,  233  U.  S. 
604.     By  the  Constitution  of  the  United  Hatters  the  directors  are 

1  In  the  Circuit  Court  of  Appeals,  Coxe,  Circuit  Judge,  commenting  upon  the 
charge  made  to  the  jury  in  the  District  Court,  said:  "  The  court  charged  the 
jury  as  follows: 

"'Now  if  this  evidence  falls  short  of  satisfying  you  that  certain  of  these  de- 
fendants did  know  of  this  unlawful  conspiracy,  or  were  in  duty  bound  to  know 
of  it,  or  did  tacitly  approve  of  it,  then  such  defendants  should  be  acquitted,  if 
any  there  may  be;  or,  in  other  words,  assuming  that  there  was  a  conspiracy  to 
violate  the  federal  statute,  as  I  have  explained  to  you,  and  that  the  statute  was, 
in  fact,  violated,  to  the  damage  of  the  plaintiffs,  then  every  person  who  had  a 
part  in  planning  or  a  hand  in  executing,  or  aided,  or  abetted  therein,  is  jointly 
liable.  Membership  in  a  Labor  Union  and  the  payment  of  dues,  are  not  acts  of 
themselves  that  necessarily  constitute  counseling,  advising,  aiding  or  abetting. 
Membership  and  payment  of  dues  are  the  life  of  the  voluntary  association,  and 
are  the  foundation  of  all  its  authority  and  the  source  of  financial  assistance  in 
executing  that  authority. 

"'If  these  members  paid  their  dues  and  continued  to  delegate  authority  to 
their  officers  and  agents  to  commit  unlawful  deeds,  which,  in  this  case,  is  the 
interference  with  the  plaintiffs'  interstate  trade  and  commerce,  under  such  cir- 
cumstances as  lead  you  to  believe  that  they  knew,  or  ought  to  have  known,  and 
that  such  officers  and  agents  were,  in  that  matter,  warranted  in  the  belief  that 
they  were  acting  within  their  delegated  authority,  then  such  members  are  jointly 
liable,  and  no  others.' 

"  The  defendants  excepted  to  this  charge,  and  have  presented  the  question  by 
proper  assignments  of  error.  The  principal  criticism  of  the  charge  is  directed  to 
the  use  of  the  words  '  or  ought  to  have  known '  in  the  last  paragraph  quoted  above. 
If  these  words  had  been  used  alone,  with  no  qualification  or  explanation,  there 
might  be  some  room  for  criticism,  but  when  considered  in  connection  with  the 
rest  of  the  charge,  we  are  entirely  satisfied  that  the  jury  could  not  have  been 
misled.  As  previously  pointed  out,  in  cases  of  conspiracy  it  is  sufficient  if  a  state 
of  facts  be  shown  from  which  the  jury  are  justified  in  drawing  the  conclusion  that 
the  defendants  must  have  known  of  the  existence  of  the  conspiracy.  It  was  in 
this  sense  that  the  judge  used  the  words  '  ought  to  have  known.'  He  left  to 
the  jury  the  question  which  the  judge,  on  the  preceding  trial  regarded  as  estab- 
lished by  such  overwhelming  proof  that  he  decided  it  as  matter  of  law,  viz. :  Did 
the  defendants  know  of  the  combination  to  destroy  the  plaintiffs'  business? 
"  In  cases  where  actual  knowledge  is  not  shown,  the  question  is,  was  the  proof 
of  such  a  character  that  the  jury  was  justified  in  finding  that  a  member  of  the 
local  unions  in  good  standing,  attending  their  meetings,  paying  his  dues,  having 
access  to  their  publications,  knowing  their  methods  and  having  struck  with  his 
fellow  members  because  of  the  plaintiffs'  refusal  to  be  dictated  to  by  the  union 
as  to  the  manner  in  which  their  business  should  be  conducted,  must  have  known 
what  was  being  done?  A  soldier  who  with  his  regiment  charges  the  enemj^'s 
line  can  hardly  be  heard  to  assert  that  he  did  not  know  a  battle  was  in  progress." 
Lawlor  v.  Loewe,  209  Fed.  721,  727,  728.  —  Ed. 


638  LIABILITIES    OF    LABOR   UNION    MEMBERS  [CHAP.  XII 

to  use  "  all  the  means  in  their  power  "  to  bring  shops  "  not  under 
our  jurisdiction  "  "  into  the  trade."  The  by-laws  provide  a  separate 
fund  to  be  kept  for  strikes,  lockouts,  and  agitation  for  the  union 
label.  Members  are  forbidden  to  sell  non-union  hats.  The  Federa- 
tion of  Labor  with  which  the  Hatters  were  affiliated  had  organiza- 
tion of  labor  for  one  of  its  objects,  helped  affiliated  unions  in  trade 
disputes,  and  to  that  end,  before  the  present  trouble,  had  provided 
in  its  constitution  for  prosecuting  and  had  prosecuted  many  what 
it  called  legal  boycotts.  Their  conduct  in  this  and  former  cases  was 
made  public  especially  among  the  members  in  every  possible  way. 
If  the  words  of  the  documents  on  their  face  and  without  explanation 
did  not  authorize  what  was  done,  the  evidence  of  what  was  done 
publicly  and  habitually  showed  their  meaning  and  how  they  were 
interpreted.  The  jury  could  not  but  find  that  by  the  usage  of  the 
unions  the  acts  complained  of  were  authorized,  and  authorized  with- 
out regard  to  their  interference  with  commerce  among  the  States. 
We  think  it  unnecessary  to  repeat  the  evidence  of  the  publicity  of 
this  particular  struggle  in  the  common  newspapers  and  union  prints, 
evidence  that  made  it  almost  inconceivable  that  the  defendants,  all 
living  in  the  neighborhood  of  the  plaintiffs,  did  not  know  what  was 
done  in  the  specific  case.  If  they  did  not  know  that,  they  were 
bound  to  know  the  constitution  of  their  societies,  and  at  least  well 
might  be  found  to  have  known  how  the  words  of  those  constitutions 
had  been  construed  in  the  act. 

It  is  suggested  that  injustice  was  done  by  the  judge  speaking  of 
"  proof  "  that  in  carrying  out  the  object  of  the  associations  unlawful 
means  had  been  used  with  their  approval.  The  judge  cautioned  the 
jury  with  special  care  not  to  take  their  view  of  what  had  been  proved 
from  him,  going  even  farther  than  he  need  have  gone.  Graham  v. 
United  States,  231  U.  S.  474,  480.  But  the  context  showed  plainly 
that  proof  was  used  here  in  a  popular  way  for  evidence  and  must 
have  been  understood  in  that  sense.  .  .  .  Judgment  affirmed} 


JONES  V.  MAKER 

Supreme  Court  of  New  York.     1909 

62  Misc.  388 

Mills,  J.  This  is  an  action  to  enjoin  the  defendants  from  per- 
forming certain  acts  to  the  detriment  of  the  plaintiff's  business  in 
their  conduct  of  a  strike  in  which  a  portion  of  his  employees  have 
engaged.  .  .  . 

The  weight  of  the  evidence  appears  to  me  to  fully  establish  the 
following  material  facts: 

1  Compare  Lightbourne  v.  Walsli,  97  App.  Div.  (N.  Y.)  187  (holding  that  mere 
membersfiip  and  payment  of  dues  were  not  sufficient  to  create  individual  liability 
for  acts  of  aasociation). 


\ 


SECT.  II]  MEMBERS  639 

The  plaintiff  is  and  for  some  years  has  been  engaged  in  the  busi- 
ness of  manufacturing  speedometers,  —  that  is,  instruments  for 
measuring  the  speed  of  automobiles.  .  .  .  Some  days  prior  to  the 
fourteenth  of  March,  [1907],  he  discharged  or  caused  to  be  discharged 
from  his  service  one  Manning,  who  was  the  foreman  of  the  tool  room 
in  that  factory.  There  is  some  conflict  in  the  testimony  as  to  the 
cause  of  such  discharge;  but,  in  view  of  the  law  hereinafter  taken 
and  stated,  it  is  unnecessary  to  solve  that  conflict. 

Shortly  thereafter,  first  within  a  day  or  two,  James  P.  Schofield, 
who  was  the  business  agent  of  District  Lodge  No.  15  of  the  Inter- 
national Association  of  Machinists,  called  at  the  plaintiff's  office  in 
New  York  city  with  a  view  of  seeing  him,  at  least,  in  regard  to  the 
discharge  of  Manning,  who  was  also  a  member  of  such  association. 

Machinists,  or  at  least  many  of  them,  are  organized  in  a  volun- 
tary association,  of  which  the  general  organization  is  known  as  the 
International  Association.  Next  below  that  come  various  district 
organizations,  each  for  a  given  territory  and  known  as  district  lodges; 
and,  finally,  below  the  district  lodges  are  local  organizations  known 
as  local  lodges,  several  coming  under  the  jurisdiction  of  each  district 
lodge.  All  the  lodges  are  voluntary  associations  and  are  entirely 
unincorporated. 

The  locality  of  the  plaintiff's  factory  fell  within  the  jurisdiction 
or  limits  of  Local  Lodge  No.  460,  and  that  within  those  of  District 
Lodge  No.  15.  In  a  general  way,  the  object  of  the  association,  in 
its  several  branches,  is,  largely,  to  promote  the  interests  of  its  mem- 
bers; and  its  active  work  evidently  is  to  promote  such  interests  in 
the  relations  of  its  members  with  their  employers.  Many  of  the  men 
employed  in  the  plaintiff's  factory  were  members  of  such  Local 
Lodge  No.  460. 

During  the  forenoon  of  the  14th  of  March,  1907,  the  plaintiff's 
superintendent  by  his  direction  discharged  five  other  foremen  at  the 
factory,  viz.,  the  defendants  William  Volkman,  Robert  Long,  Thomas 
Shore,  Frank  Meyers,  and  Alexander  Robinton.  Between  the  dis- 
charge of  Manning  and  that  of  the  other  foremen,  Schofield  had 
several  times  called  at  plaintiff's  office  in  New  York  city  to  see  him, 
but  without  success,  leaving  for  him  his  business  card  as  such  busi- 
ness agent  of  said  District  Lodge  No.  15.  The  forenoon  of  the  four- 
teenth of  March  he  called  twice  and  at  the  first  call  left  a  message 
for  the  plaintiff  to  the  effect  that  there  was  some  trouble  at  his  New 
Rochelle  factory,  and  that  he  had  better  see  him  about  it.  About 
noon  he  called  again,  and  plaintiff  refused  to  see  him.  Thereupon 
he,  Schofield,  went  to  New  Rochelle,  arriving  there  at  the  factory 
about  2  P.M.  Upon  the  discharge  of  the  foremen,  most  of  the  people 
working  under  them  left  with  them  at  noon;  and,  when  Schofield 
arrived,  others,  including  the  defendant  Volkman,  one  of  the  fore- 
men discharged  that  day,  also  left  the  factory.  The  discharged 
foremen  and  the  employees  who  had  stayed  out  or  gone  out,  some 


640  LIABILITIES    OF    LABOR    UNION    MEMBERS  [CHAP.  XII 

seventy  to  ninety  in  all,  thereupon  held  a  meeting  and  with  the  aid 
and  counsel  of  Schofield  organized  a  strike.  The  object  or  purpose 
of  the  strike  seems  to  have  been  to  secure  that  the  plaintiff  reinstate 
the  discharged  men  and  of  course,  incidentally,  take  back  those  who 
had  voluntarily  left.  The  strikers  at  once  in  their  meeting  determined 
to  institute  picketing  of  plaintiff's  factory,  so  as  to  prevent  his  secur- 
ing others  to  take  their  places  in  his  work.  They  agreed  that  all  of 
the  men  among  the  strikers  should  act  as  pickets,  and  appointed  as 
the  leader  of  the  pickets  the  defendant  Volkman;  and  he  acted  in 
that  capacity  throughout  the  strike,  up  even  to  the  following  Novem- 
ber. The  effort  of  the  strikers  was  to  have  at  least  eight  pickets  at 
all  times  posted  at  various  commanding  points  in  the  public  streets 
about  and  near  the  factory,  so  as  to  guard  effectually  all  approaches 
thereto.  The  effort  of  the  pickets  was  twofold:  first  to  persuade 
newcomers  not  to  take  the  places  of  the  strikers,  and  second  to  in- 
duce those  who  might  still  work  at  the  factory  to  leave  and  join  the 
strike.  Efforts  were  also  made  by  some  of  the  strikers  to  induce 
the  various  boarding  house  keepers  in  the  vicinity  to  refuse  to  board 
any  one  who  might  work  at  the  factory,  and  such  efforts  for  a  time 
were  attended  with  considerable  success.  Attempts  were  also  made 
by  some  of  the  strikers  to  establish  against  the  plaintiff  a  substantial 
boycott,  by  preventing  his  employees  being  supplied  with  milk,  and 
by  posting  and  distributing  notices  and  cards  containing  the  well 
understood  condemnatory  expression  "Unfair,"  and  the  express 
charge  that  "Jones'  speedometers"  were  then  being  made  not  alone 
by  non-union  labor,  but  also  by  unskilled  and  incompetent  labor; 
and  in  substance  urging  the  public  not  to  purchase  the  plaintiff's 
product.  Such  cards  were  distributed  by  the  defendant  Volkman 
at  the  annual  automobile  exhibition  in  New  York  city  as  late  as 
November,  1907. 

Some  picketing  was  attempted  about  plaintiff's  salesrooms  in 
New  York  city,  but  that  seems  not  to  have  been  constant.  About 
the  factory  at  New  Rochelle  the  picketing  was  constantly  and  vig- 
orously maintained  for  several  months,  up  to  October,  at  least,  and 
even  to  some  extent  into  November.  Approximately  100  men  were, 
by  the  efforts  of  the  pickets,  either  turned  away  from  accepting  em- 
ployment or  induced  to  actually  leave  employment  at  the  factory 
during  the  pendency  of  the  strike. 

It  was  substantially  the  daily  practice  of  the  pickets,  if  their  per- 
suasions were  not  successful,  to  address  openly  upon  the  public  streets 
and  near  the  factory,  to  the  persons  whom  they  accosted  as  actual 
or  prospective  employees,  epithets  offensive  and  even  indecent. 
Frequently  they  jostled  and  crowded,  on  and  along  the  public  walk 
leading  to  the  factory,  the  employees  going  to  and  from  the  factory, 
and  at  the  same  time  applijnl  to  them  such  abusive  terms.  There 
were  also,  occasionally,  instances  of  actual  violence,  more  serious 
than  the  mere  jostling  or  "shouldering"  (to  adopt  a  phrase  from 


SECT.  II]  MEMBERS  641 

the  testimony);  but  such  instances  of  substantial  violence  do  not 
appear  to  me  to  have  been  so  frequent  as  to  charge  with  responsi- 
bility therefor  those  who  did  not  actually  participate  therein.  It 
may  be  said,  however,  that  the  use  of  such  epithets  might  well  have 
been  expected  to  lead  to  personal  affrays;  and,  indeed,  in  at  least 
several  instances,  such  was  the  cause  of  the  actual  substantial  vio- 
lence proven. 

It  docs  not  appear  that  any  resolution,  of  any  meeting  of  the  strikers 
or  of  either  of  the  lodges  ever  authorized  the  use  of  any  epithets  or 
violence  by  the  pickets,  or  in  any  way  took  express  cognizance  of 
any  such  occurrence.  The  meetings  of  the  lodge,  however,  were  fre- 
quently advised  of  the  pendency  of  the  strike  and  made  regular 
contributions  in  money  to  the  support  of  the  strikers  and  the  picket- 
ing at  stated  intervals. 

For  some  time  after  the  commencement  of  the  strike,  the  plaintiff 
felt  compelled,  by  the  manner  in  which  the  picketing  was  conducted, 
as  above  stated,  to  feed  and  practically  keep  his  employees  in  the 
factory  itself;  also,  for  a  longer  period,  to  hire  and  maintain  guards; 
and  also  to  employ  legal  services,  all  of  which  he  did  to  his  very  con- 
siderable cost.  In  May,  1907,  he  brought  this  action  for  injunctive 
relief  and  to  recover  damages  as  incidental  thereto. 

The  law  of  this  case  is  well  settled,  as  both  counsel  seem  to  agree. 
It  may,  therefore,  be  briefly  stated,  without  attempting  to  verify 
the  statement  by  citation  of  authorities.  The  "law  of  strikes"  is  well 
established,  at  least  to  the  following  extent.  In  the  absence  of  a  con- 
tract for  an  unexpired  specified  term  of  service  and  hire,  there  being 
here  no  question  of  any  such,  the  employer  has  the  absolute  right, 
at  any  time  and  for  any  cause,  to  discharge  his  employees,  one  or 
more;  and,  on  the  other  hand,  his  employees  have  the  right,  at  any 
time,  singly  or  collectively  and  for  any  cause,  even  at  their  own  mere 
will,  to  leave  his  employment;  and,  if  such  employees  think  they 
have  any  grievance  against  him,  their  employer,  e.  g.,  for  the  dis- 
charge of  a  fellow  employee,  they  may  not  only  strike,  that  is,  them- 
selves leave  his  employment,  but  may,  by  picketing,  attempt  to 
peaceably  persuade  other  workmen  not  to  enter  his  employment  and 
take  their  vacant  places  and  even  to  persuade  their  former  fellow 
workmen,  still  remaining  in  the  service,  to  leave  and  join  them  in  the 
strike.  Their  efforts  to  attain  such  result,  however,  must  be  confined 
to  acts  of  peaceable  persuasion.  Certainly  they  may  not  extend  to 
violence,  threats  or  even  verbal  abuse;  and,  if  they  do  so  extend, 
they  thereby  become  unlawful. 

The  evidence  in  this  case  amply  demonstrates  that  the  picketing 
of  the  plaintiff's  factory  at  New  Rochelle,  for  the  period  of  at  least 
six  months  after  March  fourteenth,  when  the  strike  began,  was  con- 
stantly, that  is  practically  daily  and  openly,  of  such  unlawful  char- 
acter, by  reason  at  least  of  the  use  of  abusive  epithets,  as  is  plain 
from  the  above  recital  of  facts.    There  can  be  no  doubt,  therefore, 


I 


642  LIABILITIES   OF   LABOR   UNION   MEMBERS         [CHAP.  XII 

that  the  plaintiff's  cause  of  action  has  been  estabhshed  against  those 
of  the  defendants  who  have  been  proven  to  have  personally  partici- 
pated in  such  overt  and  unlawful  action. 

The  following  named  defendants  have  been  clearly  proven  to 
have  so  participated,  viz.:  Thomas  Shore,  William  Volknian,  Frank 
Meyers,  Charles  Meyers,  James  Kelly,  Frank  E.  Becker,  Robert 
Long,  Howard  Grosvenor,  George  Long,  and  George  Harrison.  The 
grave  question  for  determination  is  the  question  whether  or  not  the 
two  lodges.  District  No.  15,  and  Local  No.  460,  each  of  which  is  a 
voluntary  association,  not  incorporated,  consisting  of  more  than 
seven  persons  and  here  sued  under  sec.  1919  of  the  Code  of  Civil 
Procedure  by  its  president  as  a  defendant  herein,  should  be  held  re- 
sponsible for  such  unlawful  conduct  of  the  picketing.  It  is  not  clear 
that  either  lodge  can  be  held  responsible  for  the  initiation  of  the 
strike,  and  it  is  immaterial  whether  it  can  be  so  held,  because  the 
strike  itself  was  not  unlawful.  Both  lodges,  however,  maintained 
the  strike  by  money  contributions  made  at  frequent  and  stated  in- 
tervals to  support  the  strikers  and  especially  the  picketing. 

It  does  not  appear  that  the  above  recited  unlawful  conduct  of 
the  picketing  was  ever  expressly  brought  to  the  notice  of  a  meeting 
of  either  lodge;  but  the  same  must  have  been  well  known  to  their 
representatives.  The  business  agent  of  District  Lodge  No.  15  fre- 
quently visited  the  scene  of  the  strike,  attended  local  meetings  of  the 
strikers,  and,  if  he  had  kept  his  eyes  and  ears  open,  must  have  be- 
come well  informed  as  to  the  unlawful  character  of  the  picketing, 
viz.,  the  constant  and  public  use  of  abusive  epithets  by  the  pickets 
as  above  described.  Those  things  were  done  so  openly  and  regularly 
that  any  one  interested  in  the  conduct  of  the  strike  could,  by  the 
least  observation  or  inquiry,  have  ascertained  them  at  any  time  for 
months. 

I  think,  therefore,  that  those  lodges,  in  thus  regularly  sustaining 
the  picketing  by  pecuniary  support  for  so  long  a  time,  must  be  held 
to  have  so  acted  with  knowledge,  actual  or  constructive,  of  the  un- 
lawful conduct  of  the  picketing,  and,  therefore,  that  they  must  be 
held  to  have  aided  and  abetted  such  unlawful  conduct.  Hence  I 
conclude  that  the  plaintiff's  case  is  established  against  the  two 
lodges  —  District  No.  15  and  Local  No.  460  —  as  well  as  against 
the  defendants  above  named  as  having  been  proven  to  have  per- 
sonally participated  in  the  verbal  abuse. 

The  acts  of  actual,  substantial  violence  proven  appear  to  me  not 
to  have  been  sufficiently  frequent  or  notorious  as  to  charge  the 
lodges  or  the  strikers,  other  than  those  who  actually  participated  in 
them,  with  having  aided  and  abetted  them.  Inasmuch  as  the  evi- 
dence as  to  the  constant  use  of  abusive  opitlicts  is  so  ample  and  is 
in  itself  sufficient  to  establish  the  unlawful  character  of  the  picket- 
ing. I  do  not  deem  it  necessary  to  inquire  and  determine  to  what 
extent  the  efforts  at  boycotting  are  to  be  regarded  as  illegal.    In  any 


SECT.  II]  MEMBERS  643 

event  the  evidence  as  to  them  does  not  seem  to  be  sufficient  to  estab- 
lish that  either  lodge  aided  and  abetted  them. 

It  remains  to  determine  what  the  plaintiff  shall  be  permitted  to 
recover  as  incidental  damages  against  the  two  lodges  and  the  above 
named  defendants  who  actually  participated  in  the  unlawful  conduct 
of  the  picketing. 

I  think  that  such  damages  should  include  what  the  plaintiff  paid 
for  counsel  fees,  viz.,  $347,  and  also  what  he  paid  for  guards  about 
his  factory  and  for  maintaining  there,  in  the  early  part  of  the  strike, 
a  commissariat  for  feeding  and  caring  for  his  employees,  to  protect 
them  from  the  unlawful  efforts  of  the  pickets,  which  I  find  amounted 
to  at  least  the  sum  of  $3500,  making  an  allowance  of  damages  in  the 
total  sum  of  $3847.  I  do  not  think  that  the  evidence  as  to  cancelled 
orders  or  lessened  output  of  the  factory  is  sufficiently  definite  to 
warrant  an  allowance  of  damages  upon  either  such  account. 

My  conclusion  on  the  whole  case,  therefore,  is  that  the  plaintiff 
is  entitled  to  judgment  for  relief  by  way  of  injunction,  and  inciden- 
tally for  damages  in  the  amount  last  named  against  both  of  said 
lodges  or  their  representative  officers,  defendants  herein,  and  also 
against  the  individual  defendants  above  stated  to  have  actually 
participated  in  the  unlawful  conduct  of  the  picketing.  The  form  of 
the  decision  should  be  settled  upon  notice. 

Judgment  accordingly.^ 

1  Affirmed  in  141  App.  Div.  919. 

See  also.  Metallic  Roofing  Co.  v.  Jose,  12  Ont.  L.  R.  200. 


CHAPTER  XIII 
TRADE  AGREEMENTS 

FIRST  NATIONAL  BANK  OF  PLATTSMOUTH  v.  RECTOR 

Supreme  Court  of  Nebraska.     1899 
59  Neb.  77 

NoRVAL,  J.  The  unincorporated  religious  society  known  as  the 
Methodist  Episcopal  Church  of  Weeping  Water,  in  November,  1888, 
entered  into  a  written  contract  with  the  First  National  Bank  of 
Plattsmouth  for  the  purchase  of  eighty  acres  of  land  in  Cass  county 
situate  near  the  town  of  Weeping  Water.  The  land  was  bought  to 
enable  the  society,  by  the  subsequent  sale  of  the  premises,  to  erect 
and  maintain  a  college  or  seminary  of  learning,  as  well  as  for  the 
advancement  of  the  cause  of  religion.  The  society  sold  forty  acres 
of  the  land,  and  the  proceeds  were  applied  on  the  claim  of  the  bank. 
Full  payment  on  the  contract  of  the  purchase-money  not  having 
been  made  as  therein  provided,  the  bank  commenced  foreclosure 
proceedings  against  the  society  to  subject  the  other  forty  acres  to 
the  payment  of  the  purchase  price.  A  decree  of  foreclosure  was  en- 
tered, the  land  sold  thereunder,  and  the  sum  realized  was  appHed 
on  the  decree,  leaving  a  deficiency  of  $1,573.73,  for  which  sum  a 
deficiency  judgment  was  rendered  in  favor  of  the  bank  on  October 
10,  1892.  Execution  was  issued  on  the  judgment,  and  the  same 
was  levied  on  the  church  property.  Simeon  Rector  and  others,  as 
trustees  of  the  Methodist  Episcopal  Church  of  Weeping  Water, 
instituted  a  suit  to  enjoin  the  bank  from  selling  the  church  property, 
to  cancel  and  annul  the  deficiency  judgment,  and  to  restrain  the 
collection  thereof  upon  various  grounds,  which  need  not  be  here 
stated.  A  decree  was  rendered  therein  perpetually  enjoining  the 
sale  of  the  church  building  and  parsonage,  the  court  refusing  to 
enjoin  the  collection  of  the  deficiency  judgment.  The  present  suit 
was  instituted  by  the  bank  against  the  individual  members  of  the 
society  under  sees.  24  and  27  of  the  Code  of  Civil  Procedure,  to  sub- 
ject their  individual  property  to  the  payment  of  the  deficiency  judg- 
ment. Issues  were  joined,  and  a  trial  thereof  was  had,  which  resulted 
in  a  decree  in  favor  of  the  defendants,  dismissing  plaintiff's  petition. 
The  bank  has  prosecuted  an  appeal. 

The  sole  question  presented  by  the  record  is  whether  under  the 
undisputed  facts  plaintiff  had  a  right  to  recover  in  the  present  suit 
under  sees.  24  and  27  of  the  Code  of  Civil  Procedure,  which  reads 
as  follows: 


CHAP.  XIII]  TRADE    AGREEMENTS  645 

"Sec.  24.  Any  company  or  association  of  persons  formed  for 
the  purpose  of  carrying  on  any  trade  or  business,  or  for  the  purpose 
of  holding  any  species  of  property  in  this  state,  and  not  incorporated, 
may  sue  and  be  sued  by  such  usual  name  as  such  company,  partner- 
ship, or  association  may  have  assumed  to  itself  or  be  known  by, 
and  it  shall  not  be  necessary  in  such  case  to  set  forth  in  the  process 
or  pleading,  or  to  prove  at  the  trial,  the  names  of  the  persons  com- 
posing such  company. 

"Sec.  27.  If  the  plaintiff,  in  any  judgment  so  rendered  against 
any  company  or  partnership,  shall  seek  to  charge  the  individual 
property  of  the  persons  composing  such  company  or  firm,  it  shall  be 
lawful  for  him  to  file  a  bill  in  chancery  against  the  several  members 
thereof,  setting  forth  his  judgment  and  the  insuflficiency  of  the  part- 
nership property  to  satisfy  the  same,  and  to  have  a  decree  for  the 
debt,  and  an  award  of  execution  against  all  such  persons,  or  any  of 
them,  as  may  appear  to  have  been  members  of  such  company,  asso- 
ciation, or  firm." 

A  reading  and  consideration  of  the  foregoing  provisions  leads  to 
the  irresistible  conclusion  that  it  was  never  the  intention  of  the 
legislature  that  said  sec.  27  should  apply  to  members  of  church 
societies  or  religious  associations.  Execution  is  permissible  to  issue 
against  the  individual  under  said  section  only  when  the  partnership 
property  of  the  company  or  firm  is  insufficient  to  satisfy  the  debts 
thereof.  A  rehgious  society,  within  the  meaning  of  the  statute,  can 
have  no  partnership  assets.  Such  a  society  is  not  organized  for  the 
purpose  of  business  or  profit  of  its  members,  but  to  advance  and 
promote  the  cause  of  religion.  The  authorities  quite  generally 
agree  that  members  of  a  voluntary  unincorporated  association,  such 
as  a  religious  society,  are  not  individually  liable  for  its  debts,  unless 
they  authorized  the  incurring  of  the  obHgation  or  subsequently 
ratified  the  same.  The  rule  is  thus  stated  in  1  Bates  on  Partnership 
at  sec.  75:  "A  club  or  unincorporated  association  not  formed  for 
the  purposes  of  gain  or  pecuniary  profit  is  not  a  partnership.  The 
fact  that  they  have  common  property  or  a  joint  fund  does  not  make 
them  partners.  ...  As  these  associations  are  not  formed  for  profit 
or  loss,  if  a  contract  is  made  in  their  society  name,  the  associates  are 
not  bound  by  it,  unless  it  was  authorized  by  them;  but  all  the  ofiicers 
or  members  who  joined  in  making  or  authorizing  the  contract  are 
represented  by  the  joint  name,  and  they  are  liable  upon  it,  on  the 
ground  of  principal  and  agent  and  not  of  partnership."  To  the 
same  effect  is  Mechem,  Agency,  sec.  72;  and  a  like  doctrine  was 
recognized  and  applied  by  this  court  in  Hornberger  v.  Orchard,  39 
Nebr.,  639.  In  the  case  with  which  we  are  dealing  there  is  no  aver- 
ment or  proof  that  the  defendants  authorized  the  making  of  the 
contract  with  the  bank,  or  that  they  afterward,  with  knowledge 
thereof,  ratified  the  same.    The  decree  is  right,  and  is 

Affirmed. 


646  TRADE   AGREEMENTS  [CHAP.  XIII 

REDING  V.  ANDERSON 
Supreme  Court  of  Iowa.     1887 

72  Iowa,  498 

Action  in  chancery  to  enjoin  defendants  from  committing  tres- 
passes by  breaking  and  entering  into  a  hall  or  room  in  a  building 
owned  by  plaintiff.  A  temporary  injunction  was  allowed,  which, 
after  answer,  upon  motion  supported  by  affidavits,  was  dissolved. 
Plaintiff  appeals. 

Beck,  J.  —  I.  The  petition  alleges  that  defendants  have  committed 
frequent  acts  of  trespass  by  breaking  and  entering  a  room  or  hall  in 
a  building  owned  by  plaintiff,  and  threaten  to  repeat  such  trespass. 
It  is  alleged  that  defendants  are  insolvent,  and  an  injunction  is 
demanded  to  avoid  a  multiplicity  of  suits.  The  defendants,  in  their 
answer,  allege  that  they  are  members  of  a  post  of  the  Grand  Army 
of  the  Republic,  which  acquired  the  right  to  the  use  and  occupancy 
of  the  hall  in  question  under  a  lease  signed  by  plaintiff  and  the  prin- 
cipal officers  of  the  post,  and  that  the  lease  was  ratified  by  the  post, 
and  all  rent  due  was  paid  or  tendered  by  it  to  plaintiff.  The  affidavits 
support  the  allegations  of  the  petition,  and  show  that  defendants 
entered  the  hall  as  members  of  the  post,  in  the  exercise  of  the  right 
acquired  under  the  lease,  and  that  the  post  is  an  unincorporated 
association  of  those  who  had  served  in  the  armies  of  the  Union  dur- 
ing the  war  of  the  rebellion.  A  copy  of  the  lease  is  attached  to  the 
answer  as  an  exhibit,  and  is  of  the  character  and  effect  as  alleged  in 
defendants'  answer.  It  expresses  a  contract  renting  the  hall  to  the 
post,  which  is  bound  thereby  to  pay  rent.  It  is  signed  by  plaintiff 
and  one  of  the  defendants,  P.  T.  Anderson,  to  whose  signature  is 
attached  the  words,  "Post  Com.  and  Comt." 

II.  The  plaintiff  insists  that  the  lease  is  void  upon  the  sole  ground 
that  it  is  made  to  an  unincorporated  association.  No  questions  are 
raised  in  the  case  other  than  those  involved  in  this  objection.  While 
it  is  true  that  an  unincorporated  association  is  not  competent  to 
contract,  or  acquire  an  interest  in  lands  by  deed  or  grant,  yet  it  is 
not  true  that  no  right  or  obligation  passes  to  or  from  the  persons 
constituting  the  association  thereunder.  The  person  making  a  con- 
tract in  the  name  of  such  an  association  is  personally  bound  thereby, 
and  the  members  of  the  association  assenting  to  the  contract  are 
bound  in  the  same  way.  Lewis  v.  Tilton,  64  Iowa,  220;  Keller  v. 
Tracy,  11  Id.  530.  (See  Code,  sec.  1068.)  Now,  there  cannot  be  a 
contract  in  which  one  of  the  parties  is  bound  and  the  other  is  not 
bound.  It  must  be  binding  on  both.  It  follows  that,  where  a  con- 
tract is  made  with  an  unincorporated  association,  or  a  part  of  them, 
the  other  contracting  party  is  bound  by  the  contract.  In  the  case 
before  us  the  officer  of  th(;  association  signed  a  lease,  and  is  person- 
ally bound  thereby.    His  associates,  assenting  to  the  lease,  are  bound 


CHAP.  XIII]  TRADE   AGREEMENTS  '  647 

in  the  same  way.  They,  or  the  association,  perform  their  part  of  the 
contract,  and  pay  or  tender  the  rent  as  it  becomes  due.  The  law  will 
not  permit  plaintiff  to  recognize  the  lease  as  long  as  it  serves  his  pur- 
pose, and,  after  that,  renounce  and  declare  it  void,  and  oust  the 
association  or  the  associates  from  the  premises. 

The  fact  that  the  contract  secures  a  leasehold  interest  in  lands 
will  not  defeat  the  rights  and  obligations  of  the  parties  thereto. 
There  are  scores  of  unincorporated  associations,  for  various  pur- 
poses, in  the  state,  whose  business  requires  the  use  of  rooms,  halls 
and  offices,  which  are  rented  and  occupied  by  them.  It  would  as- 
tonish the  profession  to  learn,  from  our  decision  in  this  case,  that 
leases  in  the  name  of  such  associations,  signed  by  their  officers  or 
committees,  are  utterly  void,  and  that  the  associates  and  their 
representatives  may  be  turned  out  as  trespassers  at  the  will  of  the 
landlords. 

The  order  dissolving  the  injunction  is  Affirmed.^ 


HUDSON  v.  CINCINNATI,  NEW  ORLEANS  &  TEXAS 
PACIFIC  RAILWAY  CO. 

Court  of  Appeals  of  Kentucky.     1913 

152  Ky.  711 

Lassing,  J.  Prior  to  June  28,  1907,  William  Hudson  was  in  the 
employ  of  the  Cincinnati,  New  Orleans  &  Texas  Pacific  Railway 
Co.,  on  its  Chattanooga  division,  as  an  engineman.  Upon  that 
day  he  was  discharged  for  an  infraction  of  the  rules  of  the  company. 
On  September  1,  1911,  he  brought  suit  against  the  company  for 
$2000,  the  alleged  value  of  time  lost  by  him  during  the  period  be- 
tween the  date  of  his  discharge  and  December  1,  1908,  charging 
that  said  sum  was  due  him  from  the  defendant  because  of  its  breach 
of  a  contract  entered  into  by  and  between  the  defendant  and  the 
Order  of  Brotherhood  of  Locomotive  Engineers,  of  which  plaintiff 
was  a  member  in  good  standing.  The  particular  covenant  upon 
which  he  bases  his  cause  of  action  is  as  follows:  ''In  case  an  engine- 
man  believes  his  suspension  or  discharge  unjust  he  shall  within  ten 
days  appeal  to  the  superintendent  by  letter,  and  if  found  to  have  been 
unjustly  suspended  or  dismissed,  he  shall  be  reinstated  and  paid 
for  all  time  lost.  The  proper  officers  of  the  company  will  at  all  times 
listen  to  any  complaint  that  enginemen  as  a  body  or  individually 
may  wish  to  present,  and  under  ordinary  circumstances  make  prompt 
decision  in  regard  thereto."     It  is  charged  by  plaintiff  that  his  dis- 

1  See  other  cases  in  preceding  chapter. 

Compare  Robbins  v.  Cook,  173  N.  W.  (S.  D.)  445  (defendants,  members  of  a 
commission  requested  by  the  Governor  to  provide  a  suitable  state  exhibit  at  the 
Panama-Pacific  Exposition,  ordered  pins  and  badges  from  plaintiff,  who  sues 
defendants  as  individuals  for  the  price). 


648  TRADE    AGREEMENTS  [CHAP.  XIII 

charge  was  unjust;  that  he,  within  ten  days  thereafter,  by  letter 
appealed  to  the  superintendent  of  defendant,  his  superior,  for  an 
investigation  of  the  charges  against  him,  offering  therein  to  submit 
to  said  officer  proof  of  his  innocence  of  the  charges,  and  asked  for  a 
reinstatement,  but  that  said  officer  refused  to  make  known  the  result 
of  his  investigations  or  to  reinstate  plaintiff.  A  demurrer  to  this 
petition  was  sustained.  In  an  amended  petition  plaintiff  set  out  in 
full  the  contract  alleged  in  his  petition,  averring  that  it  was  duly 
executed  and  delivered  by  the  defendant  company  and  by  the  duly 
authorized  officers  and  agents  of  said  Order  of  Brotherhood  of  Loco- 
motive Enginemen.  It  is  also  alleged  that  "each  and  every  men- 
ber  of  the  Order  of  Railroad  Enginemen  and  this  plaintiff  was  by 
said  contract  required  to  render  to  the  defendant  service  as  engine- 
man  under  the  terms  and  conditions  set  forth  in  said  contract,  and 
at  the  prices  therein  specified  for  two  years  from  December  1st,  1906, 
unless,  by  notice  as  in  said  contract  provided,  change  was  made, 
which  notice  was  not  given  or  change  made."  The  contract  referred 
to  contains,  first,  a  list  of  stations  on  the  Chattanooga  division  of 
defendant's  railway  and  the  rates  of  pay  of  enginemen  for  trips 
between  such  stations,  in  the  yards  and  on  work  trains.  Then, 
under  the  caption  of  "Rates  of  Pay  and  Regulations,"  follow  thirty- 
four  articles.  All  deal  with  rates  of  pay,  hours  of  work,  seniority  in 
service,  computation  of  time  and  overtime,  disputes  as  to  time, 
tests  of  hearing  and  eyesight,  and  other  minor  details  incident  to 
the  operation  of  engines,  except  Article  XXI,  relating  to  suspension 
and  reinstatement,  which  has  been  quoted  herein  above,  and  Article 
XXXIV,  which  is  as  follows:  "These  rules  and  regulations  will  be 
in  effect  2  years  from  date  unless  30  days  notice  is  given  by  either 
party  of  any  contemplated  changes."  A  demurrer  to  the  petition, 
as  amended,  was  sustained.  Plaintiff,  declining  to  plead  further 
and  his  petition  having  been  dismissed,  appeals.  For  appellant, 
it  is  insisted,  first,  that  the  officers  of  the  union  of  which  he  was  a 
member  in  making  the  contract  in  question,  acted  as  the  agent  of 
all  its  members;  and,  second,  under  said  agreement,  and  partic- 
ularly under  Article  XXXIV  thereof,  the  members  of  saitl  union 
obligated  themselves  to  work  for  the  railway  company,  and  the 
railway  company  bound  itself  to  employ  them,  for  the  period  be- 
ginning December  1,  1900,  and  ending  two  years  thereafter,  under 
the  terms  and  conditions  set  forth  in  the  other  ))r()visions  of  said 
contract.  However,  in  one  of  the  briefs  filed  on  behalf  of  appellant, 
this  contention  is  abandoned  to  an  extent,  and  it  is  insisted  that 
only  those  mem])crs  of  said  union  who  accepted  employment  under 
this  contract  undertook  to  work  for  a  pcn'iod  of  two  yc^ars  from  De- 
cember 1,  19()(),  upon  the  terms  and  concHtions  and  for  the  wages 
therein  provided.  On  the  other  hand,  it  is  argued  for  appellee  that 
individual  members  of  a  labor  union  are  not  bound  by  contracts 
between  the  union  and  employers,  unless  such  agreements  are  ratified 


CHAP.  XIII]  TRADE    AGREEMENTS  649 

by  them  as  individuals;  that  the  contract  is  void  for  want  of  mu- 
tuality of  obligation,  as  between  it  and  appellant;  that  the  effect  of 
said  agreement  was  merely  to  fix  the  rates  of  pay  and  regulations  by 
which  enginemen  employed  by  it  were  to  be  compensated  and  gov- 
erned, during  their  employment  within  the  period  therein  designated ; 
that,  if  said  agreement  is  a  contract  of  employment,  the  term  of 
service  is  indefinite  and  cither  party  could,  at  any  time,  terminate  it 
without  cause;  and  that,  under  the  terms  of  said  agreement,  the 
determination  by  its  superintendent  that  the  discharge  of  appellant 
was  just  is  conclusive,  and  no  cause  of  action  arises  upon  an  alleged 
wrongful  decision  of  said  officer. 

The  allegation  rehed  upon  to  establish  agency  of  appellant  on 
the  part  of  the  officers  in  the  execution  of  said  agreement  is,  that  the 
contract  "was  duly  signed  and  executed  and  delivered  by  the  duly 
authorized  officers  and  agents  of  the  defendant  company  and  said 
Order  of  Railroad  Enginemen."    If  they  were  the  agents  of  appellant, 
it  is  to  be  inferred  only  from  the  fact  that  appellant  was  a  member 
of  the  organization,  the  agents  of  which  they  are  admitted  to  be. 
Appellant  has  failed  to  enlighten  us,  by  averment,  as  to  the  objects 
of  the  union  of  which  he  was  a  member,  as  contained  in  its  charter, 
if  a  corporation,  or  in  its  constitution,  if  it  is  an  association,  or  whether 
the  officers  referred  to  were  the  agents  of  a  local  or  general  union. 
However,  the  court  knows,  as  a  part  of  the  history  of  the  times,  that 
the   Order  of  Brotherhood  of  Locomotive   Engineers,   and  unions 
engaged  in  like  efforts,  are  associations  of  craftsmen,  having  for 
their  objects  improved  working  conditions  and  resisting,  in  concert, 
the  unjust    exactions  of    capital.     Their    purposes  are   social,  not 
commercial.    Permanent  improved  labor  conditions,  not  temporary 
contractual   relations   between  individuals  and  employers,  are   the 
commendable  objects  with  which  they  are  engrossed.    A  labor  union, 
as  such,  engages  in  no  business  enterprise.    It  has  not  the  power,  and 
does  not  undertake,  to  supply  employers  with  workmen.     It  does 
not,  and  cannot,  bind  its  members  to  a  service  for  a  definite,  or  any, 
period  of  time,  or  even  to  accept  the  wages  and  regulations  which 
it  might  have  induced  an  employer  to  adopt  in  the  conduct  of  his 
business.    Its  function  is  to  induce  employers  to  establish  usages,  in 
respect  to  wages  and  working  conditions,  which  are  fair,  reasonable, 
and  humane,  leaving  to  its  members  each  to  determine  for  himself 
whether  or  not  and  for  what  length  of  time  he  will  contract  with 
reference  to  such  usages.    Contracts  between  an  individual  member 
of  a  union  and  an  employer  for  personal  service  being  merely  inci- 
dental to  the  broad  purposes  of  the  union,  its  agents,  in  acting  for 
the  union,  in  no  way  bind  the  individual  members  thereof. 

In  Burnetta  v.  Marceline  Coal  Co.,  180  Mo.  241,  Burnetta,  a 
miner  and  member  of  the  Miners'  Union,  entered  into  the  service 
of  the  Coal  Co.,  and  after  continuing  therein  for  a  short  time,  vol- 
untarily left  the  company  and  sued  it  for  the  balance  of  wages  due 


650  TRADE    AGREEMENTS  [CHAP.  XIII 

him.  The  company  admitted  the  amount  charged  to  be  owing  him, 
but  denied  that  it  was  then  due.  The  workman  asserted  that  the 
union,  of  which  he  was  a  member,  had  a  contract  with  the  company 
in  which  certain  pay  days  were  provided  for,  and  that  under  this 
contract  the  amount  owing  was  due.  The  court  there  in  disposing 
of  the  question  as  to  whether  a  contract  made  by  a  union,  in  respect 
to  rates  and  regulations,  inured  to  the  benefit  of  its  members  said: 

"The  Miners'  Union  is  not  an  organization  for  the  purpose  of 
conducting  any  business  enterprise,  but  is  purely  one  for  the  pro- 
tection of  labor  against  the  unjust  exactions  of  capital.  The  mem- 
bers of  the  union  do  not  labor  in  coal  mines  for  the  organization,  but 
each  member  w^orks  for  himself,  and  whatever  compensation  he  re- 
ceives is  for  the  benefit  of  himself  and  family.  That  the  Miners' 
Union,  as  an  organization,  cannot  make  a  contract  for  its  individual 
members  in  respect  to  the  performance  of  work  and  the  payment  for 
it,  in  our  opinion,  is  too  clear  for  discussion. 

''While  it  may  be  true  that  a  labor  organization  may  have  rules 
requiring  the  employer  to  designate  a  certain  pay  day,  and  if  you 
employ  a  member  of  the  organization  or  even  one  who  is  not  a  mem- 
ber, and  by  agreement  his  services  are  to  be  paid  for  on  the  designated 
pay  days,  as  established  by  the  rules,  it  could  be  well  insisted  that 
the  contract  fixes  the  time  of  payment,  that  is  upon  the  theory  that 
the  individual  so  contracts,  and,  by  no  means,  upon  account  of  his 
being  a  member  of  the  organization  which  has  undertaken  to  con- 
tract for  him. 

"A  contract  on  the  part  of  an  individual  that  he  will  perform 
certain  work  under  the  rules  of  an  organization,  is  not  to  be  inferred 
from  the  simple  fact  that  he  is  a  member  of  the  organization.  Per- 
sons work  for  themselves  and  are  free  and  independent.  Agreements 
imposing  conditions  can  only  be  enforced  when  the  entire  proposi- 
tion has  been  stated  and  by  them  freely  accepted."  .  .  . 

Appellant's  name  is  nowhere  mentioned  in  the  agreemeiit  under 
consideration.  There  is  in  it  no  language  from  which  it  can  be  in- 
ferred that  the  officers  of  the  union,  in  signing  said  agreement,  were 
acting  as  the  agents  of  appellant.  The  fact  that  they  were  agents  of 
the  union  will  not  justify  the  inference  that  they  were  acting  for 
appellant,  a  member  of  the  union.  It  is  not  contended  that  he  ever 
ratified  the  act  of  said  officers.  The  fact  that  appellant  entered  the 
service  of  the  railway  company  as  engineman,  knew  of  the  usages 
which  the  company  had  adopted  at  the  instance  of  the  union,  as- 
sented to  and  became  bound  by  them,  being  a  mere  incident  to  the 
objects  of  the  union,  cannot  be  said  to  be  a  ratification.  It  follows, 
therefore,  that  the  officers  of  the  union,  in  the  execution  of  said 
agreement,  were  not,  and  could  not  be,  the  agents  of  appellant. 

As  the  relation  of  principal  and  agent  between  appellant  and 
the  officers  of  the  union,  signing  the  agreement  under  consideration, 
is  not  shown  to  exist,  no  rights  accrue  to  him  thereunder  by  reason 


CHAP.  XIII]  TRADE    AGREEMENTS  651 

of  its  execution  by  them,  and  we  now  enter  into  a  consideration  of 
the  contract  that  did  exist  between  appellant  and  the  railway  com- 
pany. In  this  a  proper  understanding  of  the  contract  set  out  in  the 
pleadings  will  be  of  material  assistance.  That  contract  was  between 
the  union  and  the  railway  company  alone.  It  was  made,  presumably, 
in  furtherance  of  the  policy  of  the  union  to  secure  for  its  members 
more  remunerative  compensation  and  improved  conditions  of  em- 
ployment. It  does  not,  in  terms,  expressly  or  impliedly  obligate 
any  member,  or  group  of  members,  of  the  union  to  work  for  the  rail- 
way company  for  two  years,  or  any  length  of  time,  or  at  all.  It  does 
not,  in  terms,  require  the  railway  company  to  employ  even  union 
enginemen,  or  any  enginemen.  It  is  just  what  it,  on  its  face,  purports 
to  be,  and  nothing  more.  It  is  merely  a  memorandum  of  rates  of  pay 
and  regulations  governing,  for  the  period  therein  designated,  engine- 
men  employed  on  the  Chattanooga  division  of  the  company's  rail- 
way. Having  been  signed  by  appellee,  it  is  evidence  of  its  intention, 
in  the  conduct  of  its  business  with  enginemen  on  said  division,  to 
be  governed  by  the  wages  and  rules,  and  for  the  time,  therein  stip- 
ulated. Enginemen  in,  or  entering,  its  service,  during  the  time  limit, 
contract  with  reference  to  it.  There  is,  on  its  face,  no  consideration 
for  its  execution.  It  is,  therefore,  not  a  contract.  It  is  not  an  offer, 
for  none  of  its  terms  can  be  construed  as  a  proposal.  It  comes  squarely 
within  the  definition  of  usage  as  defined  in  Byrd  v.  Beall,  150  Ala. 
122.  There  the  court,  in  defining  usage,  said,  "usage"  refers  to 
"an  established  method  of  dealing,  adopted  in  a  particular  place, 
or  by  those  engaged  in  a  particular  vocation  or  trade,  which  acquires 
legal  force,  because  people  make  contracts  in  reference  to  it."  In 
support  of  this  definition,  29  Am.  &  Eng.  Ency.  of  Law,  365,  and  12 
Cyc.  1033,  are  cited.  It  follows,  therefore,  that  all  appellee  assented 
to  in  signing  that  agreement  was  that  it  would  adopt  and  maintain 
the  rates  of  pay  and  regulations,  and  for  the  period  of  time,  therein 
stipulated  in  its  dealings  with  enginemen  employed  by  it  on  its  Chat- 
tanooga division  of  its  railway. 

If  appellant,  during  the  time  limit  provided  in  said  agreement, 
entered  the  service  of  appellee  as  engineman  on  its  Chattanooga 
division,  knew  and  assented  to  the  provisions  of  said  agreement,  or 
if  they  were  so  generally  known  among  enginemen  as  to  justify  the 
presumption  that  he  did  know  them,  and  made  no  express  contract 
in  conflict  with  any  of  its  provisions,  the  agreement  in  question  en- 
tered into  and  became  a  part  of  his  contract  with  appellee,  as  if  fully 
incorporated  therein.  This  agreement,  as  shown,  did  not  undertake 
to  fix  a  material  element  of  a  contract  for  personal  service,  viz.:  the 
period  of  service.  The  provision  relied  upon  by  appellant  to  deter- 
mine this  element  is  Article  XXXIV,  as  follows:  "These  rules  and 
regulations  will  be  in  effect  two  years  from  date,  unless  30  days  notice 
is"given  by  either  party  of  any  contemplated  changes."  None  of 
the  other  thirty-three  articles  of  the  agreement  fixes,  or  undertakes 


652  TRADE   AGREEMENTS  [CHAP.  XIII 

to  fix,  the  period  of  service  of  enginemen  who  might  be  in  the  employ 
of  the  railway  company,  during  the  time  limit,  and  how,  by  any  kind 
of  construction,  "rules"  or  ''regulations"  or  any  other  language  of 
this  article  can  be  made  to  mean  "period  of  service,"  we  are  at  a 
loss  to  understand.  It  is  contended,  in  brief,  that  as  some  of  the 
provisions  exact  of  enginemen  a  service,  that  when  such  provision  is 
construed  with  Article  XXXIV,  there  is  an  obligation  on  the  part 
of  the  employe  to  work,  and  the  company  to  employ,  for  two  years. 
Article  I  is  cited  as  requiring  such  service.  It  reads  as  follows: 
"Twelve  hours  or  less  will  constitute  a  day's  work  for  switch  en- 
ginemen. They  will  receive  $3.50  per  day;  35  cents  per  hour  after 
12  hours.  In  road  service  they  will  be  paid  road  rates.  One  hour 
will  be  allowed  for  meals  at  or  as  near  noon  or  midnight  as  it  is  pos- 
sible." Again,  we  are  at  a  loss  to  understand  how,  by  any  kind  of 
construction,  there  has  been  a  meeting  of  the  minds  of  the  parties 
to  this  litigation  upon  the  period  of  service.  The  contract  bears  evi- 
dence of  having  been  drawn  with  the  utmost  care  to  express  the  agree- 
ment of  the  parties  thereto.  There  is  an  elaborate  memorandum  of 
the  stations  between  which  runs  are  made,  and  the  pay  for  each  run 
is  fixed  for  enginemen  on  passenger  trains,  through  and  local  freights. 
Another  provision  fixes  how  much  enginemen  are  to  be  paid  when 
attending  court  at  the  instance  of  the  company.  Another  requires 
their  tools  and  necessary  equipment,  including  lamps,  to  be  placed 
on  engines  at  terminals.  When  these  articles  go  into  the  minutest 
details,  it  is  not  reasonable  to  suppose  that  if  the  parties  so  intended, 
the  draftsman,  in  the  preparation  of  the  agreement,  would  have 
used  the  words  usually  employed  to  express  agreements  as  to  period 

of  service,  such  as,  engineman, ,  or  a  certain  number  of 

enginemen,  agree  to  serve  the  company  and  the  company  agrees  to 
employ,  for months  or years,  etc.  The  conten- 
tion that  the  period  of  service  was  fixed  by  said  contract,  or  was  other 
than  indefinite,  is  without  merit. 

When  appellant's  contract  of  employment  with  appellee  is  fairly 
construed,  it  is  evident  that  the  period  of  service  is  indefinite,  and, 
that  being  true,  either  party  had  the  right  to  terminate  it  at  any  time, 
for  or  without  cause.  L.  &  N.  R.  R.  Co.  v.  Offutt,  99  Ky.  427.  Ap- 
pellee did  terminate  said  contract  by  the  discharge  of  appellant. 
His  claim  is  for  time  lost  after  the  determination  of  the  contract  be- 
tween him  and  appellee  and  all  his  rights  thereunder  had  ceased. 
The  trial  court  correctly  held  that  his  petition  stated  no  cause  of 
action. 

Judgment  affirmed.' 

'  Accord:  Burnetta  v.  Marccline  Coal  Co.,  180  Mo.  241.  See  also,  Scarano  v. 
Lcinlein,  121  N.  Y.  Supp.  351;  Keysaw  v.  Dotterweich  Brewing  Co.,  105  N.  Y. 
Supp.  562.  ^ 


CHAP.  XIII]  TRADE   AGREEMENTS  653 

A.  R.  BARNES  &  Co.  v.  BERRY, 
U.  S.  Circuit  Court  of  Appeals,  Sixth  Circuit.     1909 

169  Fed.  225 

Before  Lurton  and  Severens,  Circuit  Judges,  and  Cochran,  Dis- 
trict Judge. 

Cochran,  District  Judge.  This  case  has  to  do  with  a  controversy 
between  certain  employers  on  the  one  hand  and  certain  employes  on 
the  other.  The  employers  are  master  printers  engaged  in  business  in 
the  principal  cities  of  the  United  States  and  Canada.  They  are 
either  corporations,  firms,  or  individual  natural  persons.  Those  in 
each  city  are  organized  into  local  associations.  Each  local  association 
has  its  own  distinct  name,  consisting  of  the  word  "Typothetse"  pre- 
ceded by  the  name  of  the  city  where  located,  as,  e.  g.,  the  "St.  Louis 
Typothetae."  These  several  local  associations  are  organized  into  an 
international  association,  which  has  the  name  of  the  "United  Ty- 
pothetae of  America."  The  local  associations  are  made  up  of  the 
individual  master  printers  of  the  city  where  located,  and  the  inter- 
national association  is  made  up  of  the  individual  local  associations. 
The  local  associations  send  delegates  to  an  annual  meeting  of  the 
international  association,  and  these  delegates  at  those  meetings, 
amongst  other  business  transacted  thereat,  elect  the  officers  thereof 
to  represent  the  association  during  the  ensuing  year.  All  the  master 
printers  of  the  two  countries  are  not  in  the  organization.  Many  are 
not. 

The  employes  are  pressmen  and  feeders  and  other  assistants  of  the 
pressmen.  They  are  all  individual  natural  persons.  They  are  lo- 
cated and  organized  as  are  the  master  printers.  The  pressmen  and 
the  feeders  and  other  assistants  of  the  pressmen,  however,  are  sep- 
arately organized  so  far  as  the  local  associations  are  concerned;  the 
local  associations  of  both  being  organized  into  one  and  the  same 
international  association.  The  local  associations  of  each  have  their 
own  distinct  names;  that  in  the  case  of  the  pressmen  consisting  of 
the  words  "Printing  Pressmen's  Union,"  preceded  by  the  name  of 
the  city  where  located  and  followed  by  its  particular  number,  as, 
e.  g.,  "St.  Louis  Printing  Pressmen's  Union,  No.  6,"  and  in  the  case 
of  the  feeders  and  assistants  of  the  words  "Feeders'  &  Assistants' 
Union,"  preceded  and  followed  as  in  the  case  of  the  pressmen,  as, 
e.g.,  "St.  Louis  Feeders'  &  Assistants'  Union,  No.  43."  The  name 
of  the  international  association  is  the  "International  Printing  Press- 
men and  Assistants'  Union."  The  local  associations  of  both  send 
delegates  to  an  annual  meeting  of  the  international  association,  who 
elect  officers  to  represent  it  during  the  succeeding  year.  All  the  press- 
men and  feeders  and  other  assistants  are  not  in  this  organization. 
Many  are  not.  It  seems  that  all  union  employes  of  this  kind  are  not 
in  it. 


654  TRADE    AGREEMENTS  [CHAP.  XIII 

All  the  master  printers  belonging  to  the  Typothetse  do  not  have 
in  their  employ  pressmen  and  feeders  and  other  assistants  of  the 
Printing  Pressmen  &  Feeders'  Union.  Nor  are  all  such  employes  in 
the  employ  of  the  master  printers  of  the  Typothetse.  Many  such 
employers  have  no  such  employes  in  their  employ,  and  many  of 
such  employes  are  not  in  the  employ  of  any  such  employers.  But 
to  a  large  extent  such  employers  have  such  employes  in  their  em- 
ploy. The  officers  of  each  international  association  are  five  in  num- 
ber, a  president,  three  vice-presidents,  first,  second,  and  third,  and 
a  secretary  and  treasurer,  and  these  five  constitute  the  board  of 
directors  of  the  association.  At  least  this  is  the  case  with  the  Union, 
and  we  will  treat  it  as  so  in  the  case  of  the  Typothetse. 

All  of  the  members  of  the  Union  do  not  approve  of  the  controversy 
with  which  this  suit  has  to  do.  A  large  number  of  them,  though  less 
than  a  majority,  it  would  seem,  do  not  approve  of  it.  The  suit  was 
brought  by  11  master  printers  belonging  to  the  Typothetse  located 
in  the  cities  of  Chicago,  St.  Louis,  New  York,  and  Boston,  on  behalf 
of  themselves  and  all  the  other  members  of  the  Typothetse  not  citizens 
of  Ohio,  appellants  here,  against  the  president  and  the  secretary  and 
treasurer  of  the  Union,  citizens  of  Ohio  and  resident  in  the  city  of 
Cincinnati,  appellees  here.  Those  officials  were  sued,  not  in  their 
official  capacity,  but  in  their  individual.  They  were  sued,  however, 
because  of  their  official  position.  The  relief  sought  was  an  injunction 
against  action  on  their  part  calculated  to  bring  about  a  breach  of  a 
written  contract  alleged  to  have  been  entered  into  by  the  two  inter- 
national associations  January  8,  1907.  .  .  .  The  controversy  which 
occasioned  the  suit  involved  two  matters.  One  was  as  to  whether 
there  was  any  such  contract  between  the  two  international  associa- 
tions. The  other  was  whether,  if  there  was  such  a  contract,  the 
appellants  were  entitled  to  the  relief  they  sought.  The  lower  court 
held  against  the  appellants  as  to  both  particulars  and  dismissed  the 

bill.  ... 

The  contract  referred  to  covered  matters  within  the  jurisdiction 
of  the  two  international  associations.  It  is  not  necessary  to  set  it 
forth  verbatim.  Three  pages  of  the  printed  record  are  taken  to  set 
it  forth.  It  covered  three  main  matters.  It  provided  that  disputes 
between  local  associations  should  be  settled  first  by  a  local  con- 
ference committee  and  then  on  appeal  by  a  committee  of  the  in- 
ternational associations;  that  the  Union  "shall  not  engage  in  any 
strike,  sympathetic  or  otherwise,  or  boycott,  unless  the  employer 
shall  fail  to  live  up  to  this  contract,"  and  "no  employer  shall  engage 
in  any  lockout  unless  the  Union  or  mombors  thereof  fail  to  live  up 
to  this  contract";  and  "that  until  January  1,  1909,  54  hours  shall 
constitute  a  week's  work,  and  that  thereafter  during  the  life  of  this 
contract  48  hours,  of  8  hours  a  day,  shall  constitute  a  week's  work." 
The  contract  went  into  effect  May  1,  1907,  and  by  its  terms  was  to 
continue  in  force  for  5  years;   i.  e.,  until  May  1,  1912.    There  were 


CHAP.  XIII]  TRADE    AGREEMENTS  655 

a  number  of  minor  provisions  which  had  relation  to  these  main 
provisions.  Amongst  others  was  a  provision  as  to  what  would  con- 
stitute a  fulfillment  by  the  employer  of  his  contract,  dependent  upon 
which  was  the  question  as  to  wheth(^r  there  would  be  a  strike.  It  was 
that  "paying  the  scale  of  wages  and  living  up  to  the  shop  practices 
as  settled  by  the  committee,  regardless  of  his  employes'  union  affilia- 
tions," would  be  such  a  fulfillment.  The  clause  "regardless  of  his 
employes'  union  affiliations"  was  considered  by  both  parties  to  the 
contract  as  permitting  an  open  shop  as  distinguished  from  a  closed 
shop. 

The  provision  in  this  contract,  action  calculated  to  bring  about  a 
breach  of  which  on  the  part  of  the  appellees  was  sought  to  be  en- 
joined, was  that  by  which  the  Union  was  not  to  engage  in  any  strike 
unless  the  employers  should  fail  to  live  up  thereto.  The  action  on 
the  part  of  the  appellee  Berry  which  was  sought  to  be  enjoined  was 
announcing  the  result  of  a  referendum  on  the  subject  and  inciting 
the  members  of  the  Union  to  strike.  .  .  . 

Now,  as  stated,  there  is  a  controversy  as  to  whether  the  appellants 
were  entitled  to  the  relief  they  sought,  or  any  part  of  it,  even  though 
it  be  conceded  that  there  was  the  contract  as  claimed  by  appellants. 
This  phase  of  the  case  presents  very  interesting  and  possibly  novel 
questions  for  decision.  In  order  to  dispose  of  them  it  would  have 
to  be  settled  just  who  the  contract  was  really  between.  Nominally 
it  was  between  the  two  international  associations.  But  really  it 
could  not  have  been  so,  because  each  of  said  associations  lacked 
juristic  personality.  So  far  as  there  was  any  real  contract  at  all,  it 
must  have  been  between  the  individual  members  of  the  different 
local  associations.  If  so,  this  gives  rise  to  the  question  whether  it 
was  a  contract  between  all  the  members  of  the  Typothetae,  whether 
they  have  any  members  of  the  Union  in  their  employ  or  not,  on  the 
one  side,  and  all  the  members  of  the  Union,  whether  they  are  in  the 
employ  of  the  members  of  the  Typothetae  or  not,  on  the  other,  open- 
ing and  letting  in  individuals  as  they  become  members  of  either 
organization  and  also  opening  and  letting  out  such  members  thereof 
as  might  withdraw  or  be  expelled  therefrom;  or  was  the  contract 
limited  to  members  of  the  Typothetae  who  might  have  members 
of  the  Union  in  their  employ  on  the  one  side,  and  membei's  of  the 
Union  who  might  be  in  the  employ  of  members  of  the  Typothetae 
on  the  other?  If  it  were  either,  it  would  seem  to  be  a  joint  contract 
on  each  side.  The  theory  of  appellants'  case  would  seem  to  be  that 
it  is  neither;  for,  if  it  was  such,  then  the  right  of  the  members  of  the 
Typothetae  who  were  parties  to  the  contract  being  joint,  it  might 
be  thought  that  to  a  suit  brought  to  protect  the  contract  from  in- 
vasion all  of  them  were  indispensable  parties  plaintiff,  and,  though 
some  might  sue  for  all,  as  the  suit  was  limited  to  those  who  were  not 
citizens  of  Ohio,  the  lower  court  was  without  jurisdiction,  and  the 
bill  should  have  been  dismissed  for  want  of  it,  and  not  on  the  merits. 


656  TRADE    AGREEMENTS  [CHAP.  XIII 

To  meet  this  view  it  would  seem  that  the  theory'  of  appellants'  case 
must  be  otherwise,  to  wit,  that,  though  formally  the  contract  was 
between  the  two  international  associations,  it  was  really  a  separate 
contract  between  each  member  of  the  Typothetae  who  had  members 
of  the  Union  in  his  employ  on  the  one  side  and  the  members  of  the 
Union  in  his  employ  on  the  other;  or  rather,  that  the  provisions  of 
the  contract,  upon  its  being  entered  into,  became  terms  of  the  sep- 
arate contracts  of  employment  between  each  member  of  the  Ty- 
pothetae and  the  members  of  the  Union  in  his  employ.  So  taking 
the  contract  really  to  have  been,  there  can  be  said  to  be  no  question 
as  to  the  jurisdiction  of  the  lower  court.  All  members  of  the  Ty- 
pothetae who  had  members  of  the  Union  in  their  employ  were  not 
indispensable  parties  plaintiff  to  the  suit,  and  if  any  question  can 
be  made  as  to  the  right  of  some  to  sue  for  all  of  a  limited  number 
thereof  —  i.  e.,  all  not  citizens  of  Ohio  —  or  as  to  their  suing  for  mem- 
bers of  the  Typothetae  who  had  no  members  of  the  Union  in  their 
employ,  it  is  not  a  question  affecting  jurisdiction.  On  such  theory  of 
the  case  an  authority  in  support  of  the  jurisdiction  of  the  lower 
court  and  the  right  of  a  portion  of  the  Typothetae  who  had  members 
of  the  Union  in  their  employ  may  be  found  in  the  case  of  Bacon  v. 
Robertson,  18  How.  480,  15  L.  Ed.  499.  This  theory  of  the  real 
nature  of  the  alleged  contract  and  of  appellants'  case  is  a  reasonable 
one,  and  without  more  we  accept  it  as  correct  and  dispose  of  the 
appeal  on  that  basis. 

As  to  whether  otherwise  appellants  were  entitled  to  the  relief  they 
sought,  assuming  that  such  contract  was  entered  into  by  the  two  as- 
sociations, which  has  been  much  discussed  by  counsel,  we  do  not 
find  it  necessary  to  consider,  as  we  are  constrained  to  hold  with  the 
lower  court  that  no  such  contract  was  entered  into,  and  hence  pass 
it  by.  The  alleged  contract,  as  stated,  was  executed  on  January'  8, 
1907.  It  was  signed  on  that  date  in  the  name  of  each  association  by 
its  board  of  directors.  ...  It  was  understood  at  the  time  of  the 
signing  that  the  board  of  directors  of  the  Typothetae  had  no  authority 
to  make  a  binding  contract  on  its  behalf,  and  the  signing  so  far  as  it 
was  concerned  was  expressly  made  subject  to  ratification  by  that 
association.  A  meeting  thereof  was  held  thereafter  on  February  2, 
1907,  al  Pittsburg,  for  the  purpose  of  ratifying  the  action  of  its 
board  of  directors,  and  at  that  meeting  that  action  was  ratified. 
The  board  of  directors  of  the  Union,  at  the  time  of  the  signing  of  the 
contract,  claimed  to  have  authority  to  make  a  binding  contract  on 
its  behalf,  and  by  their  action  attempted  to  do  so.  .  .  .  There  is 
no  question  that  the  board  of  directors  of  each  association  sincerely 
believed  that  the  board  of  directors  of  the  Union  had  full  authority 
to  make  a  binding  contract  on  its  behalf.  In  this,  however,  we  be- 
li(;ve  they  were  mistaken,  and  it  is  for  this  reason  that  the  lower 
court  and  we  likewise  hold  that  there  was  no  such  contract  entered 
into  between  the  two  associations.    Their  authority,  like  that  of  the 


CHAP.  XIII]  TRADE    AGREEMENTS  657 

board  of  directors  of  the  Typothetse,  was  simply  to  negotiate  a  con- 
tract on  behalf  of  the  Union  with  the  Typothetae,  and  such  contract 
had  to  be  ratified  by  the  Union  association  before  it  was  binding  upon 
it.i  .  .  . 

At  its  next  convention,  held  at  Brighton  Beach,  New  York,  in 
June,  1907,  the  delegates  in  favor  of  eliminating  [the  open  shop] 
provision  from  the  contract  were  in  the  majority.  They  selected  a 
new  set  of  officers  with  one  exception,  the  appellees  being  two  of  the 
new  ones  selected;  and  in  relation  to  the  contract  in  question  they 
took  the  following  action,  to  wit: 

"Whereas,  our  board  of  directors  has  renewed  the  agreement  with 
the  United  Typothetae  of  America:     Now,  therefore,  be  it 

"Resolved,  that  said  agreement  is  ratified  and  approved,  provided 
the  '  open  shop  '  clause  is  stricken  out  and  the  amendment  is  inserted 
providing  for  nine  hours'  pay  for  the  eight-hour  day.  And  it  is 
further 

"Resolved,  that,  in  the  event  the  U.  T.  A.  rejects  these  amend- 
ments, our  board  of  directors  are  instructed  to  submit  the  question 
of  the  immediate  inauguration  of  the  eight-hour  day  to  referendum, 
said  referendum  to  be  taken  thirty  days  after  such  rejection."  .  .  . 

The  board  of  directors  of  the  Union  and  the  executive  committee 
of  the  Typothetse  met  at  Niagara  Falls  in  September,  1907,  during 
the  latter's  annual  convention  at  that  place,  and  conferred  concern- 
ing their  differences.  They  were  unable  to  agree.  The  board  of 
the  Union  urged  the  acceptance  of  the  two  amendments.  The  execu- 
tive committee  of  the  Typothetae  refused  to  accept  either,  claiming 
that  a  binding  contract  existed  between  the  two  associations,  and 
demanded  that  it  be  lived  up  to.  They  parted,  each  adhering  to  its 
position.  Thereafter  the  immediate  inauguration  of  an  eight-hour 
day  was  submitted  to  a  referendum  of  the  Union  by  its  board  of  direc- 
tors, pursuant  to  the  June,  1907,  resolution.  If  carried,  it  meant  a 
strike  if  that  day  was  not  immediately  acceded  to  by  the  Typothetae ; 
and  before  its  result  was  known  the  union  members  of  Chicago  and 
New  York  did  strike.  This  submission  and  these  strikes  were  at 
once  followed  by  the  suit  we  have  here.  .  .  . 

We  hold  that  the  board  of  directors  was  without  authority  to 
execute  the  contract  on  the  Union's  behalf. 

The  decree  appealed  from  is  affirmed.^ 

1  The  court  here  enters  upon  a  long  and  careful  examination  of  the  facts,  and 
reaches  the  final  conclusion  that  the  board  of  directors  of  the  Union  had  no  author- 
ity to  make  a  binding  contract  on  behalf  of  the  Union.  —  Ed. 

2  See  also,  D.  L.  &  W.  Ry.  Co.  v.  Switchmen's  Union,  158  Fed.  541;  Parker  v. 
First  Trust  &  Savings   Bank,  266  Fed.  961. 


658  '  TRADE    AGREEMENTS  [CHAP.  XIII 

BARZILAY  V.  LOEWENTHAL 

Supreme  Court  of  New  York.     1909 

134  App.  Div.  502 

McLaughlin,  J.  The  complaint  in  this  action  alleges  in  substance 
that  on  the  22d  day  of  November,  1907,  the  Cloth  Spongers  Em- 
ployers' Association,  of  which  the  plaintiffs  are  members,  and  the 
Cloth  Examiners  and  Spongers'  Union  of  Greater  New  York,  both 
being  unincorporated  associations,  entered  into  an  agreement,  a 
copy  of  which  is  annexed  to  the  complaint,  by  the  terms  of  which 
the  union  agi'eed,  among  other  things,  to  "furnish  to  members  of 
the  'Association'  such  competent  help  as  may  be  required";  that  the 
Union  has  violated  the  agreement  and  wrongfully  refused  to  fur- 
nish to  the  plaintiffs  such  competent  help  as  they  required ;  that  it  is 
impossible  for  them  to  secure  such  competent  help  except  through 
the  union  and  their  business  has  been  irreparably  damaged.  The 
judgment  asked  is  that  the  union,  its  officers  and  members,  be  re- 
quired to  supply  to  the  plaintiffs  •  such  competent  help  as  may  be 
required,  and  enjoined  from  further  violating  the  terms  of  the  agree- 
ment. 

The  plaintiffs  secured  an  order  to  show  cause  why  an  injunction 
pendente  lite  should  not  be  granted,  the  only  reason  for  requesting 
such  an  order  stated  in  the  moving  affidavit  being  "because  plain- 
tiffs desire  a  temporary  injunction  as  aforesaid,  having  given  the 
undertaking  required  by  law."  Upon  the  return  of  the  order  the 
order  appealed  from  was  made,  which  is  "that  the  defendant  sup- 
ply these  plaintiffs  with  such  employees  who  are  members  of  its 
union,  who  are  not  employed  at  the  present  time,  .  .  .  during  the 
pendency  of  the  agreement  between  the  defendant  and  the  Cloth 
Spongers  Employers'  Association  bearing  date  November  22,  1907." 

There  are  many  objections  to  this  order.  It  is  by  no  means  cer- 
tain that  the  complaint  states  a  cause  of  action,  for  besides  techni- 
cal defects  it  is  doubtful  whether  any  one  but  the  association  could 
enforce  the  terms  of  the  agreement,  or  whether  it  could  be  enforced 
by  injunction  at  all.  The  agreement  is  recited  to  be  under  seal, 
and  if  that  is  so  the  plaintiffs  certainly  could  not  bring  any  action 
thereon.  (Henricus  v.  Englert,  137  N.  Y.  488.)  In  any  event,  how- 
ever, the  order  could  not  stand  because  it  enjoins  the  defendant, 
not  during  the  pendency  of  the  action,  but  during  the  pendency  of 
the  agreement,  which  was  to  last  until  December  31,  1910.  It  thus 
grants  the  very  relief  demanded  in  the  complaint,  the  right  to  which 
can  be  determined  only  upon  the  trial  of  the  action.  (Oppenheim  v. 
Thanasoulis,  123  App.  Div.  494.) 

The  order  appealed  from  is,  therc^fore,  r(»vers(Ml,  with  ten  dollars  costs 
and  disbursements,  and  the  motion  denied,  with  ten  dollars  costs. 

Ingraham,  Laughlin,  Clarke,  and  Scott,  J  J.,  concurred. 


CHAP.  XIII]  TRADE    AGREEMENTS  659 

LANGMADE  v.  OLEAN  BREWING  CO. 

Supreme  Court  of  New  York.     1910 

137  App.  Div.  355 

Appeal  by  the  defendant,  the  Olean  Brewing  Co.,  from  a  judg- 
ment of  the  County  Court  of  Cattaraugus  county,  entered  in  the 
office  of  the  clerk  of  said  county  on  the  24th  day  of  May,  1909,  pur- 
suant to  an  order  of  said  County  Court  dated  the  10th  day  of  May, 
1909,  and  entered  in  said  clerk's  office,  affirming  a  judgment  of  a 
justice  of  the  peace  of  the  city  of  Olean  in  favor  of  the  plaintiff. 

Spring,  J.  The  defendant  is  a  corporation  carrying  on  a  brewery 
in  the  city  of  Olean,  and  in  the  year  1908  the  plaintiff  was  in  its  em- 
ploy as  a  teamster.  When  he  began  work  in  April  of  that  year  he 
drove  his  own  horse  and  received  two  dollars  and  fifty  cents  per  day. 
He  testified  that  during  this  employment  an  arrangement  was  made 
between  him  and  the  president  and  secretary  of  the  defendant  to 
the  effect  that  when  horses  of  its  own  were  used  in  the  business  and 
he  became  a  member  of  the  Olean  branch  of  the  International  Union 
of  United  Brewery  Workmen  of  America  the  defendant's  contract 
with  that  organization  would  regulate  the  compensation  of  the 
plaintiff. 

It  appears  that  a  written  agreement  had  been  entered  into  by 
the  union  and  the  defendant  to  become  operative  on  the  1st  of  March, 
1908,  by  which  the  defendant  agreed  to  employ  "only  members  in 
good  standing"  in  said  Olean  branch,  and  was  to  pay  beer  drivers 
fifteen  dollars  a  week  and  for  overtime,  nine  hours  a  day,  "to  be 
paid  at  the  rate  of  time  and  a  half." 

In  the  month  of  May  the  plaintiff  became  a  member  of  the  Olean 
branch  of  this  union  and  about  the  middle  of  June  he  commenced 
driving  on  a  beer  wagon  a  horse  of  the  defendant,  and  continued  in 
that  employment  until  he  was  laid  off  in  January  following  for  the 
reason  that  the  business  of  the  defendant  did  not  justify  his  retention. 

He  was  paid  fifteen  dollars  each  week  for  his  services,  signing  a 
receipt  therefor  upon  each  payment,  ahd  if  nothing  else  appeared 
there  would  not  be  much  basis  for  the  claim  of  the  plaintiff. 

The  evidence  shows  that  he  worked  overtime  and  he  testified 
that  he  kept  close  track  of  this  extra  work  day  by  day  and  presented 
an  itemized  statement  upon  the  trial,  showing  that  it  amounted 
during  the  year  to  251  hours,  and  he  has  commenced  this  action  to 
recover  for  such  overtime  services.  He  testified  that  at  several 
times  he  made  claims  to  the  officers  of  the  defendant  for  compensa- 
tion for  this  extra  work  as  stipulated  in  the  agreement  referred  to 
with  the  union.  He  testified  also  that  he  first  made  a  charge  for 
overtime  to  Mr.  Homer,  the  secretary,  and  the  latter  said  to  him, 
"Now,  he  says,  we  will  have  to  bring  that  about.  I  don't  keep  the 
time;  Habberstrumpf  keeps  the  time.    I  says,  the  contract  calls  for 


660  TRADE    AGREEMENTS  [CHAP.  XIII 

overtime  and  the  contract  was  to  take  effect  when  I  commenced  to 
drive  your  rigs  and  I  think  I  am  entitled  to  what  the  contract  calls 
for.  Q.  What  did  he  say?  A.  He  said  he  would  have  to  see.  He 
didn't  keep  the  time."  He  also  made  a  like  claim  to  Mr.  Habber- 
strumpf,  who  was  the  brewmaster  of  the  defendant  and  kept  the 
time  of  the  men,  but  Habberstrumpf  did  not  recognize  the  claim, 
telling  the  plaintiff  if  he  was  not  satisfied  with  the  fifteen  dollars  a 
week  he  would  give  him  a  job  in  the  bottling  works. 

Mr.  Sigel,  the  president,  Mr.  Homer,  the  secretary,  and  the  brew- 
master  deny  specifically  that  there  was  anj--  promise  ever  given  to 
the  plaintiff  to  pay  him  more  than  fifteen  dollars  per  week.  The 
president  testified  that  the  beer  drivers  employed  by  a  rival  brewery 
in  the  city  received  only  twelve  dollars  per  week,  and  that  company 
had  also  signed  an  agreement  with  the  union  of  like  import  to  the 
one  entered  into  by  the  defendant.  Further,  that  the  defendant 
was  willing  to  employ  the  plaintiff  in  the  bottling  works,  but  would 
not  pay  him  more  than  fifteen  dollars  per  week  as  teamster  and 
nothing  for  overtime.  The  secretary  and  Habberstrumpf  agree 
substantially  with  Sigel,  the  president.  They  were  all  present  once 
or  twice  when  the  subject  was  discussed  with  the  plaintiff  and  at 
other  times  when  the  president  was  not  present,  and  the  effect  of 
their  testimony  is  that  the  claim  was  repudiated  whenever  consid- 
ered. The  secretary  testified  also  that  he  told  the  plaintiff  whenever 
the  subject  came  up  that  if  he  did  not  wish  to  work  for  fifteen  dol- 
lars per  week  he  could  quit,  and  notwithstanding  this  statement 
the  plaintiff  kept  on  working  and  signing  the  receipts.  The  presi- 
dent testified  that  he  said  to  the  plaintiff  if  he  continued  to  work 
"it  will  be  with  the  distinct  understanding  there  will  be  no  over- 
time due  him.  He  got  up  and  went  out,"  and  nothing  further  was 
said  on  the  subject  until  after  the  employment  was  terminated  in 
January.  These  witnesses  are  strongly  supported  by  the  fact  that 
during  all  the  time  of  the  service  of  the  plaintiff  he  accepted  the 
fifteen  dollars  per  week,  signing  vouchers  for  the  same,  and  no  action 
was  taken  by  him  to  collect  for  overtime  until  he  was  discharged 
by  the  defendant.  Such  a  course  is  unusual  and,  ordinarily,  would 
suffice  to  defeat  his  claim.     (McCarthy  v.  Mayor,  etc.,  96  N.  Y.  1.) 

Again,  the  plaintiff  testified  on  his  recross-examination  that  after 
he  was  laid  off  in  January  he  spoke  to  Mr.  Sigel  on  the  subject,  say- 
ing "it  looked  funny  my  being  laid  off,  the  oldest  driver,  after  put- 
ting in  overtime  all  sunnner";  indicating  that  he  was  not  expecting 
pay  for  such  overtime.  The  putting  in  of  extra  time  would  be  no 
inducement  for  his  continued  employment  when  business  was  dull, 
if  he  was  to  be  paid  for  that  extra  time. 

It  is  probably  true  that  the  contract  entered  into  by  the  defend- 
ant with  the  unicni  can  l)e  read  into  the  agreement  with  the  plaintiff. 
(Keysaw  v.  Dotterweich  Brewing  Co.,  121  App.  Div.  58.) 


\ 


CHAP.  XIII]  TRADE    AGREEMENTS  661 

The  existence  of  that  agreement,  however,  did  not  prevent  the 
parties  to  this  action  from  regulating  the  compensation  to  be  paid 
to  the  plaintiff.  They  could  make  an  independent  agreement  dis- 
regarding the  one  with  the  union,  and  they  did  that,  if  we  are  to 
give  credence  to  the  gi-eat  preponderance  of  the  testimony.  I  think 
the  judgment  is  against  the  weight  of  the  evidence,  and  for  that 
reason  should  be  reversed. 

The  judgment  of  the  County  Court  and  of  the  Justice's  Court 
should  be  reversed,  with  costs  to  appellant  in  this  court  and  in  the 
courts  below. 

All  concurred. 

Judgment  of  County  Court  and  judgment  of  Justice's  Court 
reversed,  with  costs  in  all  courts  to  appellant. 


SCHLESINGER  v.  QUINTO 

Supreme  Court  of  New  York.     1922 

117  Misc.  735 

Motion  for  injunction  pendente  lite. 

Wagner,  J.  The  plaintiffs  move  to  continue  pendente  lite  a  pre- 
liminary injunction  enjoining  the  defendants  from  combining  and 
conspiring  to  order,  direct,  instigate,  counsel,  advise  or  encourage 
members  of  the  defendant  association  to  violate  a  certain  agree- 
ment made  between  the  association  and  plaintiffs'  union,  and  from 
doing  any  act  in  furtherance  of  such  conspiracy. 

The  contract,  the  subject  of  this  litigation,  was  entered  into  be- 
tween the  Cloak,  Suit  and  Skirt  Manufacturers'  Protective  Associa- 
tion, acting  on  behalf  of  its  members,  employees,  and  the  International 
Ladies'  Garment  Workers  Union  and  its  subsidiary,  the  Joint  Board 
of  Cloakmakers  Unions  of  the  City  of  New  York,  representing  the 
employees,  on  May  29,  1919,  to  continue  operative  up  to  June  1, 
1922. 

This  agreement  was  the  culmination  of  a  long-continued  economic 
struggle  between  the  parties,  and  for  the  first  time  recognized  in  a 
collective  bargaining  contract  the  week-work  system  in  place  and 
stead  of  the  so-called  piecework  system  formerly  prevailing  in  the 
garment  industry,  and  provided  also  a  reduction  in  the  hours  of 
labor  from  forty-eight  to  forty-four  hours  per  week.  This  innovation 
the  workers  regarded  as  a  great  stride  forward  in  their  struggle  to 
raise  their  standard  of  life.  Under  the  piecework  system  there  was 
no  uniform  or  fixed  scale  of  wages.  Besides  the  constant  disputes 
that  arose  as  to  what  the  employee  should  receive  for  a  particular 
garment,  the  workers  contend  that  the  piecework  system  was  an 
incentive  to  work  with  an  intensity  injurious  to  their  health,  prin- 
cipally in  view  of  the  fact  that  the  industry  is  seasonal,  the  periods 


662  TRADE   AGREEMENTS  [CHAP.  XIII 

of  work,  therefore,  rare,  and  the  worker  in  his  anxiety  to  make  up 
for  the  slack  time  would  strain  himself  beyond  his  physical  endur- 
ance and  thus  fall  into  ill-health,  in  many  cases  hopeless. 

After  the  agreement  had  gone  into  effect  relations  theretofore 
strained  were  resumed  and  peace  once  more  restored  in  the  industry, 
and  the  workers  began  operating  under  the  new  system.  During  the 
transitional  period,  as  might  well  have  been  contemplated  in  so 
radical  a  change  in  the  method  of  production,  complaints  were  made 
on  both  sides  respecting  "soldiering  on  the  job,"  due  to  security  of 
position  on  the  one  hand  and  the  inadequacy  of  wages  due  to  the  con- 
stant increase  in  living  costs  on  the  other.  These  difficulties,  involv- 
ing isolated  instances,  were  adjusted  by  voluntary  concessions  of 
higher  wage  and  the  averting  of  intended  or  actual  stoppages  of 
work.  And  so  matters  proceeded  until  the  request  of  plaintiffs  on 
behalf  of  the  workers  in  the  early  part  of  November,  1919,  for  an 
appreciable  increase  in  the  scale  of  wages  provided  for  in  the  con- 
tract due  to  the  more  aggravated  conditions  then  prevailing,  but 
which  clearly  in  nowise  was  to  affect  the  integrity  and  mutuality 
of  obligations  under  the  agreement. 

Discussions  became  more  acute  on  this  question  as  the  differences 
of  opinion  widened,  with  the  result  that  the  parties  found  them- 
selves engulfed  in  an  acrimonious  controversy,  both  private  and  in 
the  advertising  columns  of  the  press,  in  which  the  respective  con- 
tentions were  strikingly  and  appealingly  presented  to  gain  for  them- 
selves public  approval  and  support.  Apprehensive  of  public  calamity, 
Governor  Smith  summoned  representatives  of  the  opposing  factions 
to  a  conference,  resulting  in  their  consent  to  the  appointment  of  a 
board,  with  power  to  make  a  final  and  conclusive  disposition  of  the 
controversial  matter.  The  report  of  this  board,  after  an  extended 
examination  into  the  statistics  as  to  increased  living  costs,  made  a 
unanimous  finding  that  the  workers  were  entitled  to  a  wage  increase, 
"called  for  by  certain  conditions  inherent  in  the  industry,"  to  be 
absorbed  by  the  increased  productivity  and  conservation  of  other 
manufacturing  costs. 

After  acceptance  of  the  board's  decision  its  interpretation  caused 
a  divergent  view  as  to  the  parties  to  be  benefited.  Because  of  the 
equivocal  language  in  portions  of  the  report  the  difference  of  opinion 
as  to  its  interpretation  was  not  without  justification.  To  the  plain- 
tiffs it  spelled  out  a  clear  increase  of  the  minimum  wage  scale  therein 
provided.  To  the  defendants  the  benefits  thereunder  were  to  accrue 
only  to  those  employed  at  the  time  of  its  rendition  and  future  em- 
ployees were  not  entitled  to  participation. 

Attempts  to  persuade  the  defendants  to  confer  failed.  They  in- 
sisted upon  the  correctness  of  their  interpretation  and  their  right 
of  self-construction. 

Solicitations  that  the  source  of  origin,  namely,  the  board,  should 
be  requested  to  interpret  its  own  decision,  were  summarily  refused. 


CHAP.  XIII]  TRADE    AGREEMENTS  663 

The  deadlock  was  further  accentuated  by  plaintiff's  claim  that  inde- 
pendent contractors  who  had  accepted  the  new  award  by  private 
agreement  and  were  now  seeking  membership  in  defendant  associa- 
tion for  the  purpose  of  taking  advantage  of  its  construction  as  to 
who  shall  benefit  by  the  increase  were  so  accepted  in  violation  of 
the  agreement.  Discontent  among  the  workers  followed  disappoint- 
ment. Their  fruitless  appeals  to  the  unions,  which  in  view  of  de- 
fendants' attitude  on  the  question  of  interpretation  could  afford  no 
assistance,  resulted  in  sporadic  strikes.  These  were  few,  however, 
in  comparison  with  the  extent  of  the  work,  and  in  most  instances 
inconsequential  in  duration.  Importunities  by  plaintiff  union  suc- 
ceeded in  many  cases  to  a  return  of  the  men  to  work,  though  it  failed 
in  some  few  instances,  owing  to  the  obdurate  conduct  and  inflexible 
state  of  mind  of  the  workers. 

Finally,  on  October  6,  1920,  the  defendant  addressed  a  com- 
munication to  the  union  stating  on  account  of  strikes  against  its 
members  the  contract  obligations  had  been  violated,  and  threatened 
a  discontinuance  of  "function  of  the  machinery  of  the  contract  for 
adjustment  of  grievances."  The  plaintiffs  replied  disclaiming  any 
connection  with  or  instigation  of  strikes,  and  again  appealed  for  the 
submission  of  the  question  of  interpretation  of  the  board's  decision 
as  to  awards.  From  then  on,  in  accordance  with  their  previous 
notification,  the  defendants  ceased  the  adjustments  of  further  dis- 
putes pursuant  to  the  methods  set  up  in  the  agreement.  The  letter 
itself  and  the  developments  that  followed  are  significant  of  its  pur- 
pose in  view  of  the  claim  made  by  the  defendants  that  thereafter 
they  considered  the  binding  force  of  the  contract  at  end.  By  its 
terms  it  made  no  pretense  of  abrogating  the  existing  agreement  as 
a  whole.  It  confined  the  discontinuance  of  recognition  merely  to 
one  of  its  provisions,  namely,  that  involving  the  adjustment  of  dis- 
putes. There  was  no  mention  nor  implied  abandonment  of  the  pro- 
visions relating  to  hours  of  labor,  wages,  labor  conditions  or  others 
that  formed  the  real  basis  and  purpose  of  the  collective  bargaining 
agreement,  as  indeed  there  were  none  in  fact,  as  such  were  con- 
tinued and  observed  in  practice  long  after  the  adjustment  routine 
had  gone  into  temporary  disuse  and  clearly  defendants'  refusal  to 
carrj'  out  the  above-named  provision  did  not,  as  against  plaintiffs' 
protest  and  in  the  absence  of  rescission,  vitiate  the  agreement. 

In  April,  1921,  communications  were  again  resumed  by  the  asso- 
ciation with  plaintiffs  with  the  view  of  increasing  the  productivity 
in  the  trade  by  reason  of  the  alleged  refusal  of  the  public  to  purchase 
their  product  at  high  prices  then  obtaining.  The  union  accepted 
the  invitation  to  conference  on  this  question,  and  on  June  3,  1921, 
the  parties  entered  into  the  following  agreement: 

"(1)  Both  sides  are  in  accord  that  it  is  in  the  interest  of  the  industry  to 
readjust  the  same  in  such  a  manner  as  to  enable  the  manufacturers  to  sell 
their  product  at  more  attractive  prices,  and  they  therefore  agree  to  proceed 


664  TRADE   AGREEMENTS  [CHAP.  XIII 

at  once  to  the  organization  of  a  joint  commission,  to  be  composed  of  three 
members  of  the  association  and  three  members  of  the  unions,  whose  task 
it  shall  be : 

"(a)  To  study  shop  and  labor  production  records  and  other  available 
data  with  a  vdew  of  working  out  measures  which  would  tend  to  bring  up  the 
producti\'ity  of  the  workers  to  a  point  fair  and  proper  to  both  sides. 

"(6)  The  commission  shall  report  once  a  month,  and  on  November  1, 
1921,  it  shall  make  a  final  report  of  its  acti\dties  and  findings  before  a  joint 
committee  of  the  representatives  of  the  association  and  the  unions,  and  shall 
accompany  such  report  with  complete  and  appropriate  recommendations. 

"(2)  Until  November  1,  1921,  the  commission  shall  also  act  as  a  joint 
appeal  committee  and  shall  pass  upon  all  complaints  on  the  part  of  the  em- 
ployers and  discharged  workers  presented  to  it  by  the  unions  or  associations 
arising  out  of  any  controversy  or  dispute  about  the  adequacy  of  productivity. 
In  determining  any  case  the  labor  records  of  the  workers  in  the  shop  in 
question  shall  be  taken  as  the  basis  for  the  committee's  decisions.  If  such 
records  will  substantiate  the  contention  of  the  employer  the  action  of  the 
employer  shall  be  sustained  by  the  committee. 

"(3)  Both  sides  agree  to  enforce  compliance  with  the  decisions  of  the 
joint  committee. 

"  (4)  All  complaints  shall  first  be  taken  up  by  the  clerks  of  the  unions 
and  the  association  for  investigation  and  adjudication. 

"New  York,  June  3,  1921. 

"Cloak,  Suit  &  Skirt  Mfrs.  Pro.  Ass'n. 
"  Louis  Lustig,  Chairman. 
"By  Max  Lachman,  Vice  Chairman. 
"International  Ladies'  Garment  Workers  L%ion, 

"Benj.  Schlesinger,  Pres. 
"Joint  Board  Cloak,  Skirt  &  Reefer  Makers  Union, 
"Israel  Feinberg,  General  Manager." 

Thereafter  the  joint  commission  provided  for  in  the  agreement 
was  appointed  for  the  settlement  of  the  disputes  arising  in  regard 
to  lack  of  productivity  and  passed  upon  grievances  as  presented. 

Whether  the  agreement  was  a  supplemental  or  supplanting  one 
to  that  of  May  29,  1919,  is  disputed  in  the  affidavits,  the  employers 
contending  that  the  June  agreement  supplanted  the  earlier  one  and 
alone  was  in  force,  leaving  them  free  to  take  whatever  action  they 
deemed  fit  after  the  date  of  its  expiration,  November  1,  1922,  while 
the  plaintiffs  claim  it  was  but  an  amendment  of  and  supplementary 
to  that  already  existing  and  in  force.  Looking  at  the  scope  of  the 
agreement's  provisions,  I  think  it  indubitable  that  it  was  neither 
designed  to  supplant  nor  interfere  with  the  contract  of  May  29,  1919, 
except  to  devise  some  agreeable  method  after  suitable  investigation 
to  govern  the  requirements  of  production.  "The  working  out  of 
measures  which  would  tend  to  bring  up  the  productivity  of  the 
workers"  was  its  expressed  and  sole  purpose.  The  appointment  of 
a  commission  to  report  its  recommendations  in  that  respect  was  its 


CHAP.  XIII]  TRADE    AGREEMENTS  665 

means.  In  fact  the  jurisdiction  of  the  commission  to  adjust  griev- 
ances related  exclusively  to  those  of  adequacy  of  production.  More- 
over, the  subsequent  actions  of  defendants  furnish  conclusive  evidence 
that  both  they  and  plaintiffs  considered  the  original  collective  agree- 
ment in  existence  and  in  full  operation. 

Subsequent  complaints  of  defendants  as  to  shop  strikes  were 
couched  in  the  identical  language  employed  before  the  supplemental 
agreement  had  been  made.  In  such  complaints  distinct  reference 
was  made  "to  the  terms  of  our  agreement."  Without  a  single  refer- 
ence to  strikes  in  the  one  it  could  hardly  be  presumed  otherwise 
than  that  the  other  was  the  basis  of  the  complaint.  Numerous  com- 
pliances by  the  association  with  the  requirements  of  clause  10  as  to 
registration  of  names  and  addresses  of  contractors  employed  bj^  its 
members  give  further  support  to  the  view.  The  distribution  of 
payments  for  wages  collected  from  employers  after  dispute,  together 
with  written  notices  to  plaintiffs  of  the  admission  of  new  members, 
both  governed  by  the  original  agreement,  make  irresistible  the 
conclusion  that  the  collective  agreement  was  still  in  force  and  so 
regarded  by  the  parties. 

It  therefore,  so  far  as  the  purposes  of  this  motion  are  concerned, 
becomes  unnecessary  and  immaterial  to  decide  whether,  prior  to 
June  3,  1921,  either  of  the  parties  had  violated  or  breached  the 
conditions  of  the  agreement.  Whatever  had  before  occurred  was  to 
all  intents  waived  by  both,  and  not  only  was  its  full  operation  rein- 
stated on  that  date  and  its  provisions  thereinafter  complied  with, 
but  an  additional  instrument  had  been  created  to  adopt  procedure  to 
better  carry  out  its  terms.  So,  again,  whether  in  the  following  Octo- 
ber, when  the  association  gave  notice  at  a  meeting  of  the  commis- 
sion appointed  by  the  June  agreement,  through  its  representatives 
on  said  commission,  of  its  intention  to  substitute  the  old  system  of 
piecework,  the  plaintiffs  protested,  as  they  claim,  though  this  is 
denied  by  defendants,  that  such  a  recommendation  would  transcend 
the  powers  of  the  commission  and  be  incompatible  with  the  terms 
of  the  collective  agreement  of  May  29,  1919,  has  no  bearing  on  the 
legal  question  here  presented.  The  June  agreement  being  supple- 
mental to  that  of  May  29,  1919,  no  recommendation  under  the  former 
could  override  or  make  nugatory  the  fundamental  benefits  secured 
to  plaintiffs  under  the  latter. 

Subsequently  and  on  October  25,  1921,  the  association  adopted 
a  resolution  which  in  part  stated : 

"It  has  become  necessary  to  substitute  in  the  industry  the  piece- 
work system  for  the  week- work  system,  to  establish  an  increase  of 
the  number  of  working  hours  in  the  week  and  to  fix  a  reduction  of 
the  wages  of  the  workers  in  those  branches  of  the  industry  where, 
by  the  nature  of  the  services  rendered,  it  is  required  that  they  be 
retained  on  the  week-work  system";  and  further: 


666  TRADE    AGREEMENTS  [CHAP.  XIII 

"That  in  order  to  bring  into  full  force  and  effect  the  above  changes 
in  the  industrial  standards  of  the  industry  there  be  promulgated  an 
order,  binding  upon  every  member  of  this  association,  that  beginning 
IMonday,  November  14,  1921,  each  and  every  member  will  operate 
his  factory  on  the  piecework  system  and  at  the  scale  of  wages  and 
for  the  working  week  established  by  the  executive  committee," 
which  went  into  effect  on  the  date  named  and  ever  since  has  been 
observed  and  acted  upon  by  the  members  of  said  association. 

Refusal  of  the  plaintiffs  to  accede  to  the  new  system  of  work  set  up 
by  the  employers,  as  they  claimed,  in  contravention  of  the  collective 
agreement  resulted  in  what  is  now  commonly  termed  the  "garment 
strike." 

Thus  out  of  the  mass  of  affidavits  submitted  by  both  sides,  with 
denials  and  some  conflict  of  facts,  there  survives  clearly  a  preponder- 
ance of  evidence  in  favor  of  plaintiff  estabhshing  its  right  to  the 
extraordinary  relief  sought. 

While  this  application  is  novel,  it  is  novel  only  in  the  respect  that 
for  the  first  time  an  employees'  organization  is  seeking  to  restrain 
their  employers'  organization  from  violating  a  contractual  obligation. 

It  is  elementary,  and  yet  sometimes  requires  emphasis,  that  the 
door  of  a  court  of  equity  is  open  to  employer  and  employee  alike. 
It  is  no  respecter  of  persons  —  it  is  keen  to  protect  the  legal  rights 
of  all.  Heretofore  the  employer  alone  has  prayed  the  protection  of 
a  court  of  equity  against  threatened  irreparable  illegal  acts  of  the 
employee. 

But  mutuality  of  obligation  compels  a  mutuality  of  remedy.  The 
fact  that  the  employees  have  entered  equity's  threshold  by  a  hitherto 
untraveled  path  does  not  lessen  their  right  to  the  law's  decree. 

Precedent  is  not  our  only  guide  in  deciding  these  disputes,  for 
many  are  worn  out  by  time  and  made  useless  by  the  more  enlightened 
and  humane  conception  of  social  justice.  That  progressive  senti- 
ment of  advanced  civilization  which  has  compelled  legislative  action 
to  correct  and  improve  conditions  which  a  proper  regard  for  humanity 
would  no  longer  tolerate  cannot  be  ignored  by  the  courts.  Our  de- 
cisions should  be  in  harmony  with  that  modern  conception  and  not 
in  defiance  of  it.  Some  nisi  prius  adjudications  rendered  in  these 
disputes,  disputes  in  which  the  public  is  as  nmch  interested  as  the 
contending  parties,  have  in  my  judgment  reflected  a  somewhat  im- 
perfect understanding  of  the  trials  and  hardships  experienced  by 
the  workers  in  their  just  struggle  for  l^etter  living  conditions. 

Being  persuaded  by  the  proof  adduced  that  the  contract  with  its 
modifications  was  in  force  on  October  25,  1921,  the  resolution  adopted 
by  the  defendant  association  on  said  date  contemplated  a  material 
breach  of  said  contract.  Further,  such  conttMuplated  breach  was 
carried  out,  for  on  the  appointed  day  (NovemlxM-  14,  1921)  the  mem- 
b(;rs  of  the  association  re-established  the  piecework  system  in  their 
factories. 


CHAP.  XIII]  TRADE    AGREEMENTS  667 

Since  the  members  of  defendant  association  were  by  the  by-laws 
bound  to  and  did  carry  out  the  directions  of  the  association  to  re- 
pudiate its  legal  obligations,  the  act  constituted  a  conspiracy.  A 
combination  to  procure  a  concerted  breach  of  contract  by  the  mem- 
bers constitutes  a  violation  of  plaintiffs'  legal  rights.  Hitchman  Coal 
&  Coke  Co.  V.  Mitchell,  245  U.  S.  257. 

Is,  under  such  circumstances,  a  court  of  equity  helpless  to  give 
succor  to  plaintiffs?    I  think  not. 

In  Grassi  Contracting  Co.  v.  Bennett,  174  App.  Div.  244,  the  court 
said:  "Where  a  strike  or  other  action  is  threatened  by  a  labor  union 
in  violation  of  its  contract  or  of  the  contract  of  its  members  with 
their  employers,  the  jurisdiction  of  a  court  of  equity  to  issue  an  in- 
junction is  well  recognized." 

In  the  case  of  Beattie  v.  Callanan,  82  App.  Div.  7,  the  defendant, 
a  labor  union,  sought  to  induce  workers  who  were  under  contract 
with  their  employer  to  quit  work  and  in  other  ways  to  interfere  with 
the  performance  of  the  employment  contract.  The  union  was  en- 
joined from  interfering.  .  .  . 

Abundant  additional  precedents  exist  supporting  plaintiffs'  plea 
for  equitable  relief,  but  it  would  serve  no  useful  purpose  to  enumer- 
ate them.  The  only  distinguishing  feature  in  the  instant  case  is 
that  the  applicants  are  the  workers.  They  are  entitled  to  have 
exercised  in  their  behalf  the  restraining  power  of  the  court  when  their 
legal  rights  are  obstructed  to  the  same  extent  as  it  has  been  exer- 
cised to  protect  the  contractual  rights  of  the  employers. 

It  cannot  be  seriously  contended  that  the  plaintiffs  have  an  ade- 
quate remedy  at  law.  That  the  damages  resulting  from  the  alleged 
violation  of  the  agreement  would  be  irremediable  at  law  is  too  patent 
for  discussion.  There  are  over  40,000  workers  whose  rights  are 
involved  and  over  300  members  of  defendant  organization.  The 
contract  expires  within  six  months  and  a  trial  of  the  issues  can  hardly 
be  had  within  that  time.  It  is  unthinkable  that  the  court  would 
force  the  litigants  into  a  court  of  law.  A  court  of  equity  looks  to 
the  substance  and  essence  of  things  and  disregards  matters  of  form 
and  technical  niceties. 

The  motion  is  granted  en^ining  pendente  lite  defendants  herein, 
their  and  each  of  their  agents,  servants  and  attorneys,  and  each  and 
all  of  their  several  members,  and  every  officer,  director  and  representa- 
tive of  every  corporate  member  thereof,  and  all  persons  acting  in 
aid  of  or  in  conjunction  with  them,  or  any  of  them,  including  members 
of  the  said  The  Cloak,  Suit  and  Skirt  Manufacturers'  Protective 
Association,  from  combining  and  conspiring  in  any  way,  to  order, 
direct,  instigate,  counsel,  advise  or  encourage  the  members  of  the 
Cloak,  Suit  and  Skirt  Manufacturers'  Protective  Association,  or 
any  of  them,  to  cease  performing  or  to  violate  the  agreements  of 
May  29,  1919,  and  June  3,  1921,  made  between  the  said  The  Cloak, 
Suit  and  Skirt  Manufacturers'  Protective  Association  and  the  In- 


668  TRADE   AGREEMENTS  [CHAP.  XIII 

ternational  Ladies'  Garment  Workers  Union,  and  the  Joint  Board 
of  Cloakmakers  Union  of  the  City  of  New  York,  and  from  doing  or 
sanctioning  any  act  in  furtherance  or  support  of  such  conspiracy; 
from  ordering,  directing,  instigating,  counsehng,  advising  or  en- 
couraging such  members  of  the  said  The  Cloak,  Suit  and  Skirt 
Manufacturers'  Protective  Association,  or  any  of  them,  to  abrogate 
and  discontinue  the  provisions  of  said  agreement  for  the  system  of 
week- work  in  their  estabHshments  prior  to  June  1,  1922,  or  to  in- 
crease the  hours  of  labor  in  their  establishments  above  forty-four 
hours  per  week  until  the  said  1st  day  of  June,  1922;  from  supporting, 
aiding  or  assisting  members  of  the  Cloak,  Suit  and  Skirt  Manu- 
facturers' Protective  Association,  or  any  of  them,  in  any  effort  to 
abrogate  the  existing  contract  as  to  the  week-work  system  or  increase 
the  labor  hours  in  their  establishments  by  money,  contributions  or 
in  any  other  manner  whatsoever;  from  expelling  from  membership 
in  the  said  The  Cloak,  Suit  and  Skirt  Manufacturers'  Protective 
Association,  fining  or  otherwise  punishing,  disciphning  or  discriminat- 
ing against  such  members  of  the  said  association  as  may  agree  with 
the  International  Ladies'  Garment  Workers  Union  and  the  Joint 
Board  of  Cloakmakers  Union  of  the  City  of  New  York,  or  either  of 
them,  to  resume  work  in  their  establishments  upon  the  terms  as  to 
the  system  of  work,  hours  of  labor  or  otherwise,  of  the  agreements 
between  the  parties  of  May  29,  1919;  from  doing  or  continuing  any 
act  in  furtherance  of  the  conspiracy  above  set  forth  by  means  of 
speech,  writing,  meeting,  or  any  other  method,  and  from  taking  any 
steps  whatsoever  to  put  into  execution  or  to  retain  in  force  and 
effect  the  aforesaid  resolution  of  the  said  The  Cloak,  Suit  and  Skirt 
Manufacturers'  Protective  Association,  adopted  on  the  25th  day  of 
October,  1921. 

And  from  taking  further  action  for  the  carrying  out  of  said  resolu- 
tion or  of  any  of  the  purposes  thereof,  and  they  are  required  to  abro- 
gate the  same  and  to  cease  acting  thereunder  or  under  any  similar 
resolution,  or  from  taking  or  continuing  in  any  concerted  action 
involving  the  violation  or  repudiation  of  said  agreement  of  May  29, 
1919,  or  of  any  of  the  terms  thereof.      ^ 

Motion  granted. 

NEDERLANDSCH     AMERIKAANSCHE     STOOMVAART 
MAATSCHAPPIJ  v.  STEVEDORES'  &  LONGSHORE- 
MEN'S BENEVOLENT  SOCIETY 
United  States  District  Court,  E.  D.  Louisiana.     1920 

265  Fed.  397 

In  Admiralty.  Libel  by  the  Nederlandsch  Amerikaansche  Stoom- 
vaart  Maatschappij  against  the  Stevedores'  <fe  Longshoremen's 
Benevolent  Society  and  another.     Decree  for  the  libelant. 


CHAP.  XIII]  TRADE    AGREEMENTS  669 

Foster,  District  Judge.  Libels  in  personam  were  filed  by  the  Ned- 
erlandsch  Amerikaansche  Stoomvaart  Maatschappij ,  better  known 
as  the  Holland-American  Line,  against  the  Stevedores'  &  Longshore- 
men's Benevolent  Society  and  the  Longshoremen's  Protective  Union 
Benevolent  Association,  to  recover  damages  for  an  alleged  breach 
of  contract.  Exceptions  to  the  jurisdiction  of  the  court  to  entertain 
•  the  suits  in  admiralty  were  overruled.  The  causes  were  then  con- 
solidated by  consent  for  trial  on  the  merits,  and  the  evidence  was 
heard  in  open  court.  The  facts  will  appear  in  the  course  of  the 
opinion. 

The  respondents  are  incorporated  under  the  laws  of  Louisiana, 
for  the  purpose,  among  others,  of  regulating  the  time  and  fixing  the 
price  of  labor  of  their  members  for  working  on  the  levees  of  New 
Orleans.  One  association  is  composed  entirely  of  white  men,  and 
the  other  entirely  of  colored  men.  The  respondents  entered  into  a 
contract  with  all  of  the  ship  agents  and  employing  stevedores  at  the 
port  of  New  Orleans,  for  a  period  of  three  years,  beginning  Septem- 
ber 16,  1917,  fixing  the  hours  of  labor  and  the  price  per  hour,  with 
provisions  for  extra  pay  for  certain  cargoes,  time  and  a  half  and 
double  time  for  night  and  Sunday  work,  respectively,  and  adopting 
many  rules  and  regulations  regarding  working  conditions,  with  the 
provision  that  work  should  be  divided  equally  between  the  two 
associations. 

On  November  22,  1919,  the  national  adjustment  commission 
awarded  increases  of  wages  and  reduction  of  hours  of  day  work,  to 
wit,  80  cents  per  hour  regular  time,  $1.20  per  hour  overtime,  and 
$2  per  hour  Sunday  work,  and  limiting  regular  hours  to  four  on  Satur- 
day and  Sunday  and  eight  hours  on  other  days.  The  award  also 
provided  certain  differentials,  generally  10  cents  additional  per  hour 
for  handhng  certain  kinds  of  cargo,  which  do  not  affect  this  case. 
It  further  provided  that  the  contract  between  the  New  Orleans  ship 
agents  and  stevedores  and  the  respondents  should  remain  in  full 
force  and  effect,  except  as  modified  by  the  award.  This  award  was 
ratified  by  general  meetings  of  the  respondents. 

By  the  terms  of  the  contract  the  stevedores  are  required  to  hire 
members  of  the  respondent  unions  as  foremen,  and  the  ship  agents 
and  stevedores  agree  to  employ  only  members  of  the  unions,  if  they 
are  available.  There  are  not  enough  members  of  the  unions  to  do  all 
the  work  on  the  docks,  so  non-union  laborers  are  usually  employed 
in  addition.  The  members  of  the  unions  pay  5  per  cent  of  their 
daily  earnings  to  the  union  in  lieu  of  dues.  For  some  unexplained 
reason  the  unions  also  collect  5  per  cent  from  the  non-union  men, 
though  they  receive  no  benefits.  Employment  is  conducted  as 
follows:  The  foreman,  who  is  a  member  of  the  union,  hires  the  men. 
If  sufficient  union  men  are  not  present,  he  supplies  the  deficiency 
with  non-union  men;  but  as  soon  as  a  union  man  appears  and  de- 
mands a  job  he  discharges  a  non-union  man  instantly,  though  he 


670  TRADE    AGREEMENTS  [CHAP.  XIIT 

may  have  made  but  part  of  an  hour,  and  employs  the  union  man  in 
his  place. 

On  December  17,  1919,  the  steamship  Amsteldijk,  owned  by  hbel- 
ant,  arrived  at  New  Orieans,  partly  loaded  with  kainit  in  bulk  and 
consigned  to  the  Texas  Transport  &  Terminal  Co.  Libelant  is  not 
named  as  a  party  to  the  contract,  but  the  Texas  Transport  &  Ter- 
minal Co.  is,  and  was  then  and  now,  agent  for  libelant  at  New  Orleans. 
About  17  men,  nearly  all  members  of  the  respondents,  were  employed 
in  unloading  the  kainit  from  the  vessel,  and  worked  until  the  usual 
time  of  quitting  on  Saturdaj^  December  20,  at  the  contract  rate  of 
80  cents  per  hour.  On  Mondaj^  the  same  men  refused  to  continue 
unloading  the  kainit  unless  paid  90  cents  per  hour.  Kainit  is  not 
included  in  the  differentials,  and  the  rate  is  80  cents  per  hour  for 
unloading  it.  The  ship  declined  to  pay  90  cents  per  hour,  and 
the  Texas  Transport  &  Terminal  Company  notified  the  presidents 
of  the  unions  to  furnish  men  at  the  contract  rate.  The  presidents  of 
the  unions  made  some  effort  to  induce  the  men  to  resume  work,  but 
without  avail,  and  then  notified  libelant's  agent  it  might  employ  non- 
union men.  The  ship  was  delayed  in  unloading  some  seven  days,  by 
which  time  general  meetings  of  the  unions  were  held  and  resolutions 
adopted  ordering  the  men  to  resume  work,  which  they  then  did, 
and  about  45  men  were  employed  day  and  night  unloading  the 
kainit.    Libelant  is  suing  for  demurrage  for  the  seven  days'  delay. 

It  is  contended  on  behalf  of  respondents  that  the  contract  is  uni- 
lateral and  void  for  want  of  mutuality;  that  libelant  was  under  no 
obligation  to  send  its  ships  to  New  Orleans  and  furnish  work  for 
respondents'  members;  that  respondents  are  not  bound  to  furnish 
labor  at  all;  that  the  action  of  certain  members  in  quitting  was  their 
action  as  individuals,  and  the  unions  cannot  be  bound  in  any  event 
by  them,  as  the  officers  of  the  union  did  not  order  or  approve  of  their 
quitting;  that  non-union  labor  could  have  been  hired  to  do  the  work, 
and  libelant's  agent  was  so  notified;  and  that  libelant  has  failed  to 
minimize  its  damages. 

The  contract  is  inartificially  drawn  and  in  terms  imposes  no  obli- 
gation on  respondents  to  furnish  labor.  It  must  be  given  a  reason- 
able construction,  however,  and  so  as  to  maintain  its  validity,  if 
possible.  The  contract  absolutely  binds  all  of  the  ship  agents  and 
employing  stevedores  of  the  port  of  New  Orleans  to  employ  none 
but  members  of  the  respondent  unions,  if  they  are  available.  By  it 
the  respondents  establish  the  principle  of  collective  bargaining, 
obtain  the  closed  shop,  44-hour  week,  extra  rates  of  pay  for  overtime, 
and  their  own  working  conditions,  all  that  union  labor,  so  far,  has 
ever  contended  for.  I  think  the  contract  is  valid,  and  imposes  the 
reciprocal  obligation  on  respondents  to  work  according  to  the  con- 
tract in  good  faith.  There  is  no  doubt  the  action  of  the  men  was 
arbitrary  and  amounted  to  a  breach  of  the  contract. 


CHAP.  XIII]  TRADE    AGREEMENTS  671 

It  is  shown  that  the  officers  of  the  unions  have  no  control  what- 
ever over  the  members.  There  is  no  provision  in  the  by-laws  by 
which  they  may  be  suspended,  or  expelled,  or  disciplined  in  any 
way,  for  refusing  to  abide  b}^  the  contract.  The  contract  and  the 
award  of  the  national  adjustment  commission  were  not  accepted 
and  did  not  become  binding  on  the  unions  until  ratified  by  general 
meetings  of  all  the  members.  It  is  shown  that  some  of  the  men  who 
quit  work  did  not  seek  employment  elsewhere,  but  remained  in  the 
vicinity  of  the  vessel.  The  foreman,  a  member  of  the  union,  did  not 
seek  to  employ  non-union  men.  He  testified  non-union  men  will 
not  work  when  union  men  are  on  strike.  The  action  of  the  union 
men  in  this  case  had  all  the  elements  of  a  strike.  Considering  the 
control  exercised  over  the  non-union  men,  the  fact  that  the  foreman 
was  a  member  of  the  union,  whom  the  stevedore  was  forced  to  em- 
ploy, and  that  union  men  were  available,  though  unwilling  to  work, 
I  think  the  testimony  of  the  foreman  is  conclusive,  though  there  is 
some  testimony  of  a  general  character  that  non-union  men  might 
have  been  secured.  Under  these  conditions  the  respondents  are 
responsible  for  the  action  of  a  considerable  number  of  their  members, 
as  here  shown. 

This  brings  up  the  question  of  damages.  Undoubtedly  the  ship 
was  delayed  and  demurrage  accrued;  but  this  might  have  been 
avoided  by  paying  the  extra  wages  demanded.  The  recovery  should 
be  confined  to  what  it  would  have  cost  for  additional  wages  to  un- 
load the  ship  at  the  rate  demanded.  As  the  evidence  is  not  certain 
on  that  point,  the  case  will  be  referred  to  a  commissioner  to  ascertain 
the  damages.  Libelant  to  have  a  decree  for  that  amount,  with 
interest  at  5  per  cent  from  date  of  decree  until  paid.  Respondents 
to  pay  all  costs,  to  be  divided  between  them  equally.^ 

1  Compare  National  Fireproofing  Co.  v.  Builders'  Ass'n,  169  Fed.  259  (trade 
agreement,  though  void  as  constituting  a  monopoly,  cannot  be  enjoined  by  a 
third  person  whom  it  injures). 


CHAPTER  XIV 
INTERNAL  GOVERNMENT  OF  UNIONS^ 

Section  1 ,     Regulation  of  Internal  Affairs 

HESS  V.  JOHNSON 

Supreme  Court  of  New  York.     1899 

41  App.  Div.  465 

Appeal  by  the  plaintiff,  Minnie  A.  Hess,  from  a  judgment  of  the 
Municipal  Court  of  the  city  of  New  York  in  favor  of  the  defendant, 
entered  in  the  office  of  the  clerk  of  said  court. 

Per  Curiam:  The  action  is  brought  against  the  defendant,  as 
treasurer  of  a  voluntary  association,  to  recover  the  amount  of  a 
funeral  benefit  of  $100.  The  constitution  of  the  association,  which 
was  subscribed  by  the  plaintiff's  husband,  provided  that  the  sum  of 
$100  should,  on  the  decease  of  any  member  of  one  year's  standing, 
be  paid  to  the  relative  who  should  assume  or  be  responsible  for  the 
expenses  of  his  funeral,  but  this  payment  was  subject  to  the  proviso 
that  "No  funeral  benefits  shall  be  paid  by  this  Union  in  the  case  of 
a  member  who  shall  have  been  three  (3)  months  in  arrears,  during  the 
six  months  immediately  preceding  his  death."  The  plaintiff's  hus- 
band was  in  arrears  for  a  period  of  over  three  months,  which  he  dis- 
charged less  than  four  months  before  his  decease.  We  think  the 
interpretation  of  this  proviso  is  clear.  It  intended  that  in  case  of  a 
member  being  in  arrears  for  three  months,  even  when  he  paid  those 
arrears,  his  family  should  not  be  entitled  to  the  funeral  benefit  unless 
he  continued  his  payments  for  six  months  thereafter.  It  was  in- 
tended as  a  penalty  for  defaulting  in  the  payments  to  be  made  to 
the  association,  and  is  analogous  to  the  provision  that  the  families 
of  those  members  only  who  have  been  such  over  a  year  should  be 
entitled  to  the  benefit.  It  is  urged  that  the  provision  is  unreason- 
able, and,  therefore,  void.  In  the  case  of  Cartan  v.  The  P'ather 
Matthew  United  Benevolent  Society  (3  Daly,  20),  cited  in  support 
of  this  claim,  the  defendant  was  a  corporation,  and  the  provision 
assailed  was  a  by-law.  Here  the  defendant  is  a  voluntary  associa- 
tion, and  the  provision  is  contained  in  its  constitution,  subscribed 
by  the  members.     That  constitution  is  the  contract  between  the 

»  Wrightington,  The  Law  of  Unincorporated  Associations,  chap.  5.  See  also, 
Bacon,  Frederick  H.,  Benefit  S()(i(!tie3  and  Life  Insurance  (3d  ed.,  1904),  vol.  1, 
chap.  3;  Pomeroy,  10c)uity  .Juiis{)rudencc  (4th  ed.),  vol.  4,  sees.  1731  ct  seq.  (Equi- 
ta})l('  Remedies,  vol.  1,  cluij).  15,  sees.  309-315.) 

674 


SECT.  I]  REGULATION   OF   INTERNAL   AFFAIRS  673 

parties,  and  if  its  provisions  are  not  illegal,  immoral  or  contrary  to 
public  policy,  it  must  be  upheld  whether  reasonable  or  not,  for  parties 
have  the  right  to  enter  into  unreasonable  or  unwise  contracts  so  long 
as  such  contracts  are  not  illegal  and  are  fairly  made.  This  is  the 
distinction  between  the  case  of  a  voluntary  association  and  that  of  a 
corporation.  (Kehlenbeck  v.  Logeman,  10  Daly,  447;  Ulmer  v. 
Minister,  73  N.  Y.  St.  Repr.  260.) 

The  judgment  appealed  from  should  be  affirmed,  with  costs. 

All  concurred. 

Judgment  of  the  Municipal  Court  affirmed,  with  costs. ^ 


SCHNEIDER  v.  LOCAL  UNION  NO.  60 
Supreme  Court  of  Louisiana.     1905 
116  La.  270 
See  supra,  p.  384,  for  a  report  of  the  case.^ 

O'BRIEN  V.  MUSICAL  MUTUAL  PROTECTIVE  & 
BENEVOLENT  UNION,  LOCAL  NO.  14 

Court  of  Chancery  of  New  Jersey.     1903 

64  N.  J.  Eq.  52.5 

Emery,  V.  C.  This  is  an  application  on  behalf  of  complainants, 
claiming  to  be  the  local  association  in  Paterson  of  the  American 
Federation  of  Musicians  (a  labor  union),  to  enjoin  the  defendants, 
who  also  claim  to  be  the  local  association  for  Paterson,  from  acting 
or  holding  themselves  out  as  members  of  the  federation.  The  state 
of  facts  presenting  the  question  for  decision  is  substantially  as  follows : 

On  January  31st,  1902,  the  American  Federation  of  Musicians,  a 
general  or  national  federation,  granted  to  the  seven  complainants 
and  one  Shannon  a  charter  as  a  local  association  (No.  179)  of  the 
federation,  in  Paterson.  The  American  federation  and  the  local 
were  both  unincorporated  or  voluntary  associations. 

In  the  application  for  the  charter,  jurisdiction  or  exclusive  author- 
ity for  the  local  association  was  claimed  or  asked  for  the  territory 
within  ten  miles  of  the  Paterson  city  hall  in  all  directions,  except  in 
a  southerly  direction,  and  in  that  direction  to  the  city  line.  .  .  . 
The  certificate  appears  to  have  been  issued  by  the  executive  council 
or  board.  This  board  (by-laws,  sec.  6)  has  a  general  supervision 
of  all  matters  pertaining  to  the  federation.  The  executive  board, 
after  an  investigation  and  report  by  the  secretary  as  to  the  circum- 

1  Branagan  v.  Buckman,  67  Misc.  (N.  Y.)  242  (affirmed  in  145  App.  Div.  950). 

2  As  to  illegal  by-laws,  compare  Brewster  v.  Miller,  101  Ky.  36S;  Snow  v. 
Wheeler,  113  Mass.  179,  supra,  p.  86;  Purvis  v.  Local  No.  500,  214  Pa.  St.  348; 
Gatzow  V.  Buening,  106  Wis.  1. 


674  INTERNAL   GOVERNMENT   OF   UNIONS        [CHAP.  XIV 

stances  of  issuing  the  charter,  made  an  order  on  June  7th,  1902,  that 
the  charter  for  the  local  association  (No.  179)  be  reopened  for  thirty- 
days,  to  allow  all  musicians  in  its  jurisdiction  an  opportunity  to 
join  as  charter  members.  The  privileges  and  fees  of  charter  members 
are  different  from  and  more  favorable  than  those  of  members  ad- 
mitted subsequently.  This  order  to  reopen  the  charter  was  not  at 
once  obeyed  by  the  officers  of  the  local,  but  it  was  subsequently 
complied  with.  ...  It  appears  by  the  defendants'  affidavits  that 
one  object  in  reopening  the  charter  was  to  allow  the  admission  as 
charter  members  of  a  local  association  then  existing  in  Paterson, 
known  as  Local  14,  National  League  of  Musicians,  and  whose  mem- 
bers (one  hundred  and  forty-nine  in  number)  are  defendants  in 
this  suit.  This  Local  No.  14  is  incorporated  under  the  laws  of  New 
Jersey.  .  .  . 

The  American  Federation  of  Musicians  would  seem  to  have  the 
right  to  supervise  the  original  organization  for  the  purpose  of  pro- 
curing a  charter,  and  would,  as  I  am  now  inclined  to  think,  have 
the  right,  in  a  proper  case,  to  direct  the  opening  of  the  charter  and 
to  supervise  or  review  the  proceedings  for  organization  on  the  re- 
opening. 

The  executive  officer  of  the  district  in  which  the  local  is  situated 
has  (by-laws,  sec.  8)  charge  of  the  organization  of  associations  within 
his  district,  and  this  officer  attended  at  Paterson  for  the  purpose  of 
supervising  or  giving  directions  as  to  the  application  for  member- 
ship under  the  reopening  of  the  charter.  This  officer,  as  he  says  in 
his  affidavits,  directed  that  the  members  of  the  association  of  mu- 
sicians in  Paterson,  called  the  Musical  Mutual  Protective  and  Benevo- 
lent Union,  Local  No.  14,  National  League  of  Musicians,  should  be 
allowed  to  apply  and  be  admitted  in  a  body  as  charter  members. 
Complainants  deny  that  these  directions  were  given,  but  for  the  pur- 
pose of  this  application  the  defendants  are  entitled  to  the  benefit  of 
their  statements  under  oath.  The  application  was  made  in  this 
form  by  the  president  and  secretary  of  Local  No.  14  on  behalf  of 
the  body,  and  thereupon  the  complainants,  being  the  officers,  or 
some  of  the  officers  named  under  the  existing  charter,  refused  or 
declined  to  allow  the  admission  of  the  members  of  the  musical  union 
as  charter  members  under  this  application.  The  claim  of  the  com- 
plainants is  that  under  the  by-laws  and  charter  of  the  American 
Federation  of  Musicians  the  admission  must  be  of  each  person  sep- 
arately and  under  application  of  the  form  presented  by  the  rules 
or  by-laws  of  the  association.  By  reason  of  this  action  refusing  the 
admission  of  the  members  of  the  Local  No.  14  in  a  body,  upon  the 
reopening  of  the  charter,  the  charter  granted  to  complainants  was 
revoked.  By  what  officer  the  formal  revocation  of  the  charter  was 
actually  made  does  not  appear  with  exactness  by  the  affidavits  on 
either  side,  but  the  fair  construction  of  all  of  the  affidavits  is  that 
the  charter  was  revoked  by  the  executive  officer  of  the  district,  and 


i 


SECT.  13  REGULATION    OF    INTERNAL   AFFAIRS  675 

that  his  action  was  approved  by  the  president  of  the  American 
Federation  of  Musicians,  who,  under  tlie  by-laws  (sec.  1)  exercises 
a  general  supervision  over  the  affairs  of  the  federation  and  decides 
cases  of  emergency.  Under  the  by-laws  (sec.  6)  an  appeal  lies  from 
the  decision  of  an  executive  officer  to  the  executive  board,  which  is 
composed  (constitution,  article  8)  of  the  president,  vice-presidents, 
secretary  and  executive  officers  of  the  districts,  and  a  further  appeal 
lies  from  the  decision  of  the  executive  board  to  the  convention  of 
the  federation.  No  appeal  from  the  decision  revoking  the  charter 
has  been  taken,  nor  have  complainants  taken  any  steps  or  intimated 
any  intention  to  prosecute  an  appeal  within  the  association,  although 
notice  of  the  revocation  of  the  charter  was  received  about  November 
1st,  1902,  two  months  before  the  filing  of  this  bill.  Subsequently  to 
this  revocation  the  American  Federation  of  Musicians  granted  a 
charter  (as  Local  No.  248)  to  the  defendants,  the  musical  mutual, 
etc.,  association;  and  these  defendants  now  claim  to  be  members  of 
the  American  Federation  of  Musicians  for  Paterson  and  vicinity.  An 
opportunity  was  given  to  the  complainants' association  to  join  this 
local  in  a  body,  but  they  did  not  accept  this  offer.  The  complainants, 
being  the  original  charter  members  (except  Shannon),  claiming  under 
the  original  charter  or  certificate  as  No.  179,  and  that  its  revocation 
is  illegal,  now  apply  individually  and  on  behalf  of  the  members  of 
their  association  (numbering  about  one  hundred)  to  enjoin  the  Local 
No.  14,  and  all  of  its  individual  members  (about  one  hundred  and 
fifty),  parties  to  the  suit,  from  organizing  as  a  local  of  the  American 
federation  in  Paterson,  or  in  the  territory  claimed  to  belong  ex- 
clusively to  complainants,  and  from  continuing  this  organization 
or  advertising  as  such,  and  from  applying  to  the  trade  unions  of 
Paterson  for  recognitions  as  such  association.  .  .  .  This  suit,  .  .  . 
is  not  brought  ...  to  assert  against  the  defendant  local  associa- 
tion any  right  to  funds  or  other  property,  or  to  the  use  or  enjoyment 
of  any  property,  real  or  personal.  No  right  of  property  is  therefore 
involved  in  the  case,  unless  the  right  of  membership  is  to  be  called 
property.  It  is  claimed  by  the  bill  and  affidavits  that  this  member- 
ship of  the  American  Federation  of  Musicians,  through  its  local 
association,  carried  with  it  certain  advantages  and  privileges  to  the 
individual  members,  resulting  from  the  practice  of  labor  or  trade 
union  organizations,  especially  in  Paterson,  to  employ  no  musicians 
except  those  connected  with  the  American  federation,  and  it  is  also 
claimed  that  the  deprivation  of  this  membership  will  expose  the 
individual  members  of  complainants'  association  to  a  pecuniary 
loss  by  reason  of  the  subjection  to  posting  or  denunciation  by  trade 
unions  as  "scabs"  or  "unfair,"  and  to  the  penalty  of  being  black- 
listed by  labor  organizations  generally  throughout  the  United  States 
and  Canada. 

If  the  association  were  incorporated  there  would  be  two  valid 
objections  to  the  use  of  an  injunction  for  the  purpose  of  compelling 


676  INTERNAL   GOVERNMENT   OF   UNIONS        [CHAP.  XIV 

the  American  federation  (if  a  party  to  the  suit)  to  continue  and  to 
recognize  the  membership  which,  rightfully  or  wrongfully,  it  has 
dissolved:  First,  rights  of  membership  in  incorporated  voluntary 
associations  are,  under  the  settled  practice  in  this  state,  and  where 
no  right  of  property  of  the  alleged  member  is  involved,  to  be  deter- 
mined by  the  Supreme  Court  on  application  for  mandamus  to  admit 
to  membership.  Sibley  v.  Carteret  Club,  11  Vr.  295;  Zeliff  v.  Knights 
of  Pj^hias,  24  Vr.  536  (Supreme  Court,  1891).  These  cases  are 
cases  where  the  individual  member  who  was,  as  he  claimed,  wrong- 
fully expelled  applied  for  restoration.  In  the  present  case  the  local 
association  is  the  member  of  the  American  federation,  and  the  mem- 
bership in  the  American  Federation  of  Musicians  is  effected  only 
through  membership  in  the  local.  The  constitution  (article  3,  sec.  1) 
expressly  provides  that  the  local  associations  are  the  members  of 
the  American  federation.  In  the  second  place,  where  the  question 
is  one  of  membership  merely,  and  the  decision  involves  a  matter 
of  discipline  or  application  of  the  rules  and  regulations  of  the  asso- 
ciation and  not  of  property  right,  no  court,  either  of  law  or  in  equity, 
will  exercise  jurisdiction  until  the  remedies  by  appeal  to  the  authori- 
ties of  the  association,  under  its  rules,  have  been  exhausted.  Zeliff 
V.  Knights  of  Pythias,  supra.  The  only  cases  which  have  come  under 
my  observation  where  the  courts  afford  relief  to  a  person  claiming 
membership  in  an  incorporated  association,  who  has  not  exhausted 
his  right  of  appeal  upon  the  question  of  membership  within  the 
order,  are  those  where  the  person  claiming  membership  claims  also, 
as  a  result  of  membership,  some  distinct  individual  property  right, 
under  a  contract  or  other  obligation  of  the  association  with  him  as  a 
member.  Supreme  Lodge  v.  Eskholme,  30  Vr.  255  (Errors  and  Ap- 
peals, 1896).  In  these  cases,  which  involve  a  recognized  property 
right,  the  right  of  membership  is  decided  by  the  court  as  incidental 
to  the  contract  or  obligation  of  the  association;  but  where  the  ques- 
tion is  one  of  settling  the  general  status  as  to  membership,  for  all 
purposes,  as  between  the  complaining  party  and  an  incorporated 
association,  the  remedies  for  restoring  to  membership  provided  by 
the  association  itself  must  be  first  exhausted.  Where  the  associa- 
tion is  unincorporated  the  personal  relation  between  the  members 
is  analogous  to  that  of  partners,  and  the  legal  remedy  by  77iandamus, 
which  is  appropriate  for  the  purpose  of  restoring  the  relationship 
arising  from  membership  in  a  corporate  body,  would  seem  to  be 
inapplicable,  and  in  such  associations  it  may  be  that  the  proper  pro- 
cedure to  protect  the  common  property  rights  of  a  member  expelled 
in  violation  of  the  regulations  of  the  order  is  by  an  injunction  re- 
straining interference  with  his  use  and  enjoyment  of  such  common 
rights.  But  the  rule  requiring  prosecution  of  appeal  or  other  reme- 
dies within  the  order  or  association  itself,  before  application  to  a 
court  of  equity,  is  one  which  seems  to  be  applicable  to  all  associations, 
whether  incorporated  or  unincorporated,  where  the  question  is  one 


SECT.  I]  REGULATION    OF    INTERNAL    AFFAIRS  677 

merely  of  membership,  irrespective  of  the  enforcement  of  a  property 
right.  In  some  courts  the  exhaustion  of  the  remedies  within  a  volun- 
tary association  is  required  before  a  court  of  law  or  equity  will  in- 
terfere for  their  protection,  even  when  a  right  of  property  is  involved. 
Oliver  v.  Hopkins,  144  Mass.  175  (1887);  Grand  Lodge  Knights  of 
Pythias  v.  People,  ex  rel.  Waldeck  Lodge,  No.  136,  Knights  of  Pythias, 
60  111.  App.  550,  cited  in  49  L.  R.  Ann.  379.  Other  courts  take  a 
different  view.  Cases  cited  in  Nibl.  Ace.  Ins.  &  Ben.  Soc,  156,  215, 
inter  al. ;  Loubat  v.  Leroy,  40  Hun,  546. 

Complainants  claim  that  the  charter  confers  a  property  right, 
the  right  being  the  exclusive  right  of  membership  in  the  federation 
within  a  certain  district,  and  the  right  to  the  use  of  the  name  of  the 
association.  But  manifestly  the  charter,  or,  more  properly,  "the 
certificate  of  affiliation,"  does  not  convey,  or  purport  to  convey, 
any  property  right,  either  in  the  name  or  otherwise,  but  is  only  the 
method  by  which,  under  their  rules  and  regulations,  the  right  of 
membership  in  the  federal  association  and  in  the  local  is  evidenced. 
These  rights  of  membership  evidenced  by  the  charter  are  not,  in  my 
judgment,  in  any  sense  themselves  property  rights,  but  are  personal 
rights  only. 

A  member  of  a  local  association  may  have  or  acquire,  as  against 
the  federation,  rights  which  are  recognized  property  rights,  such 
as  a  right  to  a  share  of  its  funds,  or  to  the  use  or  enjoyment  of  its 
common  property,  but  the  rules  and  regulations  as  to  membership 
cannot,  in  any  proper  sense,  be  properly  said  to  confer  a  property 
right,  and  are  essentially,  in  their  nature,  only  rules  and  regulations 
describing  or  defining  the  method  of  their  voluntary  association, 
with  its  terms  and  conditions.  Being  thus  personal  rights  only, 
and  being  also  purely  voluntary,  the  enforcement  of  such  rules  and 
regulations  governing  mere  membership,  and  such  of  the  relations 
and  privileges  of  the  members  and  of  the  local  and  national  associa- 
tions as  do  not  involve  property  rights,  must  be  left  entirely  to  the 
association  itself,  and  the  penalty  of  expulsion  which  it  may  enforce. 
But  courts,  either  of  law  or  equity,  do  not,  on  the  application  of 
either  or  any  party,  enforce,  either  by  decrees  for  specific  perform- 
ance, injunction  or  otherwise,  the  continuance  of  the  association 
or  the  performance  of  duties  and  privileges  which,  under  their  rules, 
the  members  or  the  association,  national  or  local,  as  mere  members, 
owe  to  each  other.  A  recalcitrant  member  or  local  maj^  be  dismissed 
for  violation  of  the  rules  of  the  association.  A  member  of  the  as- 
sociation improperly  expelled  may,  by  action  of  the  courts,  be 
protected  in  his  rights  to  the  common  property.  But  the  mere 
continuance  of  the  relationship  itself,  as  between  all  concerned,  is 
voluntary,  not  legal.  If  a  member  or  local  desired  to  withdraw, 
the  withdrawal  could  not  be  prevented  by  injunction  or  otherwise, 
on  the  theory  that  the  agreement  of  membership  created  a  contract 
for  the  performance  of  the  duties  resulting  from  membership  which 


678  INTERNAL   GOVERNMENT    OF    UNIONS        [CHAP.  XIV 

a  court  would  enforce  by  compelling  the  performance  of  the  rules 
regulating  the  duties.  And  if  the  national  or  general  association 
refuses  to  continue  association  with  a  local,  whether  for  a  valid  or 
an  invalid  reason,  a  court  of  equity  cannot,  in  the  absence  of  any 
question  of  property  right,  enforce  the  continuance  of  the  relations 
voluntarily  assumed.  In  this  respect  the  rights  of  members  of  an 
unincorporated  association  differ  from  those  of  the  members  of  an 
incorporated  association.  .  .  . 

The  application  for  injunction  will  be  denied. 


RAGGETT  v.  BISHOP 

Nisi  Prius.     1826 
2  Carrington  &  Payne,  343 

Assumpsit  to  recover  lOZ.  10s.,  being  the  amount  of  one  year's 
subscription,  alleged  to  be  due  from  the  defendant  as  a  member  of 
the  Cocoa-tree  Club,  in  St.  James's  Street,  for  the  year  1824. 

It  appeared  from  the  evidence,  that  the  plaintiff  was  master  of 
that  club,  and  that  the  defendant  became  a  member  in  the  year  1823, 
the  subscription  being  ten  guineas  a-year.  By  the  rules  of  the  club, 
(which  were  put  in) ,  it  appeared  that  the  subscription  was  to  be  paid 
every  year,  on  the  1st  of  January;  and  that  if  no  notice  were  given 
by  members  of  their  intention  to  discontinue,  they  were  to  be  con- 
sidered as  members.  By  one  of  these  rules,  the  master  was  em- 
powered to  collect  the  "house  bills." 

Scarlett  for  the  defendant.  I  submit  that  the  plaintiff  is  not  the 
proper  person  to  sue.  The  master  of  a  club  is  merely  the  agent  of 
that  club,  who  have  their  general  meetings,  and  make  regulations 
independent  of  the  master. 

Abbott,  C.  J.  I  think  that  as  the  plaintiff  is  the  master  of  the 
house,  every  member  must  be  considered  as  a  debtor  to  him  for  his 
arrears.  The  members  may  take  upon  them  the  management  of 
the  affairs  of  the  club;  but  I  think  they  are  bound  to  pay  the  mas- 
ter; and  if  so,  the  defendant  is  liable  in  this  action,  unless  he  can  shew 
that  in  the  year  1823,  he  gave  notice  of  his  intention  to  discontinue 
his  subscription  after  that  year. 

Verdict  for  the  plaintiff.    Damages,  10/.  10s. 


RAGGETT  v.  MUSGRAVE 
Nisi  Prius.     1827 

2  Carrington  &  Pai/nc,  ,'3.50 

Assumpsit  by  the  plaintiff,  as  master  of  tlic  Cocoa-tree  Club, 
against  the  defendant  as  one  of  its  members,  to  recover  lOl.  10s., 
the  amount  of  the  defendant's  subscription  for  the  year  1825. 


SECT.  I]  REGULATION    OF    INTERNAL    AFFAIRS  679 

It  was  proved  that  the  defendant  had  been  a  member  of  the  club, 
and  that  all  the  members  on  their  admission  agreed  to  conform  to  the 
rules.  The  rules  were  put  in.  By  the  1st  of  them,  the  club  was  to 
consist  of  three  hundred  members,  at  an  annual  subscription  of  ten 
guineas  each.  By  the  8th,  every  member  intending  to  withdraw 
from  the  club,  was  to  signify  his  intention  in  writing  to  the  master, 
and  pay  his  subscription  for  the  current  year;  and  by  the  18th,  the 
plaintiff  was  appointed  master  of  the  club.  It  appeared  that  the  whole 
of  the  rules  of  the  club  were  contained  in  a  book  kept  by  the  master, 
which  was  accessible  to  all  the  members,  but  that  the  rules  were 
neither  posted  up  nor  sent  to  the  members. 

Scarlett,  for  the  defendant,  objected,  that  there  was  no  proof  that 
the  defendant  knew  of  these  rules. 

Abbott,  C.  J.  I  am  of  opinion,  that  every  member  of  a  club 
must  be  presumed  to  be  acquainted  with  its  rules. 

Verdict  for  the  plaintiff.    Damages,  lOl.  10s, 


MARSHALL  v.  PILOTS'  ASSOCIATION 

Superior  Court  of  Pennsylvania.     1902 

18  Pa.  Sup.  Ct.  644 

Case  stated  to  determine  the  validity  of  an  amended  by-law  of 
the  Pilots'  Association. 

The  case  stated  was  as  follows: 

That  the  plaintiff,  James  W.  Marshall,  was  duly  licensed  an  active 
pilot  of  the  hsLy  and  river  Delaware,  from  1857  until  June  29,  1899, 
holding  a  "first  rate"  branch. 

That  on  or  about  the  first  Tuesday  of  December,  1896,  there 
was  formed  and  organized  a  voluntary  association,  known  as  the 
"Pilots'  Association  for  the  Bay  and  River  Delaware,"  which  was 
and  is  composed  of  pilots  licensed  under  the  laws  of  the  states  of 
Pennsylvania  and  Delaware,  and  having  its  office  at  No.  319  Wal- 
nut Street,  in  the  city  of  Philadelphia. 

The  objects  of  this  association  are  for  the  mutual  benefits  of  its 
members;  to  equahze  the  earnings  of  the  pilots;  and  to  provide 
benefits  for  sick  and  disabled  members,  etc. 

That  said  plaintiff  became  one  of  the  original  members  of  the 
association,  and  still  continues  a  member. 

That  the  active  members  of  the  said  association  make  regular 
returns  thereto  of  all  moneys  earned  by  said  members,  which  earn- 
ings are  distributed  at  the  end  of  each  month  among  said  members, 
less  an  amount  sufficient  to  cover  expenses,  and  a  certain  percentage 
set  aside  each  month  to  create  a  sinking  fund,  share  and  share  alike. 

At  the  time  the  plaintiff  became  a  member  of  said  association 
one  of  the  by-laws  thereof  was  as  follows: 


680  INTERNAL   GO\^RNMENT   OF   UNIONS        [CHAP.  XIV 

''Rule  14.  A  member  losing  his  license  for  any  other  cause  than 
intoxication  shall  receive  half  pay  until  reinstated." 

While  continuing  a  member  of  said  association  in  active  service 
and  good  standing,  complj'ing  with  all  its  laws  and  regulations,  and 
entitled  to  his  full  share  of  the  profits  and  earnings  thereof,  the 
plaintiff  became  disabled  by  reason  of  impairment  of  his  ej-esight, 
and  could  no  longer  pursue  his  calling.  Accordingly  on  June  29, 
1899,  at  a  special  meeting  of  the  pilot  commissioners  for  the  state  of 
Delaware,  at  which  the  plaintiff  was  present  and  concurring,  his 
license  as  a  pilot  for  the  said  cause  was  revoked.  Thereupon  the 
Pilots'  Association  accorded  him  the  half  pay  provided  for  in  "Rule 
14,"  and  he  received  the  same  from  July,  1899,  until  March,  1900, 
inclusive,  being  one  half  the  amount  awarded  and  paid  each  month 
to  the  pilots  in  active  service. 

The  plaintiff  being  in  the  sixty-seventh  year  of  his  age,  and  his 
disability  being  permanent,  the  said  defendant  association,  on  or 
about  April  9,  1900,  amended  "Rule  14"  of  the  bj^-laws,  conformably 
to  the  constitution,  so  as  to  read  as  follows:  "A  member  losing  his 
license  through  accident  to  the  vessel,  or  through  any  other  cause 
except  intoxication,  he  shall  receive  one  half  pay  until  reinstated. 

"A  member  losing  his  license  for  not  being  capable  of  following 
his  business  shall  receive  Fifty  ($50.00)  dollars  per  month." 

The  effect  of  the  said  amendment  was  to  diminish  the  allowances 
or  benefits  previously  paid  to  the  plaintiff  under  Rule  14,  and  sub- 
sequently to  the  adoption  of  the  said  amendment  the  association 
declined  to  continue  to  pay  the  plaintiff  the  half  pay  provided  by 
Rule  14,  and  offered  him  the  sum  of  $50.00  per  month,  the  amount 
provided  by  the  said  amended  by-law,  which  amount  of  $50.00 
the  plaintiff  refused  and  refuses  to  accept. 

That  under  plaintiff's  contention  there  is  due  him  by  the  defendant 
the  total  sum  of  .$997.14.  .  .  . 

The  court  entered  judgment  for  defendants  on  the  case  stated. 

Orlady,  J.  .  .  .  The  office  of  a  by-law  is  to  regulate  the  con- 
duct and  to  define  the  duties  of  the  members  towards  the  corpora- 
tion and  each  other.  So  far  as  its  provisions  are  in  the  nature  of  a 
contract,  the  parties  thereto  are  the  members  of  the  association,  as 
among  themselves;  or  the  corporation  on  one  side,  and  its  individ- 
ual members  on  the  other:  Flint  v.  Pierce,  99  Mass.  68;  s.  c.  96 
Am.  Dec.  691.  It  must  be  conceded  that  a  by-law  or  regulation  is 
a  rule  for  future  action,  and  an  association  which  is  authorized  to 
make  such  by-laws  as  may  be  necessary  to  secure  the  objects  for 
which  it  is  created,  has  power  to  change  them  by  a  legal  amendment 
when  necessary  to  carry  out  such  objects.  It  must  also  be  conceded 
that  the  power  to  amend  cannot  be  so  exercised  as  to  impair  any 
right  that  has  become  vested  by  virtue  of  the  by-law.  The  articles 
of  association  and  by-laws  existing  at  the  time  when  membership 
l)egins  are  in  many  respects  to  be  regarded  as  establishing  between 


SECT.  I]  REGULATION   OF    INTERNAL   AFFAIRS  681 

the  association  and  members  certain  fundamental  rights.  It  is  essen- 
tial to  the  control  and  disposition  of  conditions  which  cannot  be 
anticipated  when  an  association  is  formed,  that  it  sliould  have  author- 
ity to  provide  for  them  by  the  amendment  or  repeal  of  a  by-law,  or 
by  enactment  of  a  new  one.  The  power  to  repeal  and  amend  is  an 
incident  to  the  power  to  enact:  Com.  v.  Lancaster,  5  Watts,  152. 

An  association  can  enact  "alterations  in  the  by-laws,  of  a  mere 
regulative  kind  or  which  are  not  inconsistent  with  the  fundamental 
scheme  of  the  incorporation,  but  in  the  line  of  its  original  purpose, 
conducive  to  perfect  equality  of  benefits  and  burdens,  though  they 
affect  (without  destroying)  vested  rights,  so  long  as  the  alterations 
relate  to  the  duties  and  rights  springing  from  the  contract  of  mem- 
bership, and  not  from  other  purely  contract  relations;  because,  on 
all  questions  of  the  rights  and  duties  incident  to  membership  every 
member,  by  his  fundamental  contract  of  membership,  pledges  his 
assent  in  advance  to  every  lawful  rule  adopted  by  the  majority  in 
furtherance  of  the  common  objects":  7  Thompson  on  Corporations, 
sec.  8769;  Supreme  Lodge  Knights  of  Pythias  v.  Knight,  117  Ind. 
489,  20  N.  E.  Repr.  479;  s.  c,  3  L.  R.  A.  409.  The  plaintiff  con- 
tends that  the  by-law  (Rule  14)  was  a  part  of  his  contract,  unalterable 
except  with  his  consent,  and  relies  on  St.  Patrick's  Male  Beneficial 
Society  v.  McVey,  92  Pa.  510,  and  Becker  v.  Berhn  Beneficial  Soci- 
ety, 144  Pa.  233. 

In  the  latter  case,  which  distinguishes  the  earlier  one,  the  status 
of  the  plaintiff  was  definitely  fixed,  and,  to  use  the  words  of  the  de- 
cision, "the  defendant  society  became  liable  to  the  plaintiff  for  dues 
at  the  rate  of  two  dollars  and  fifty  cents  per  week,  and  after  it  had 
paid  them  for  more  than  one  year  it  proceeded  to  amend  its  by-laws  so 
as  to  reduce  the  amount  of  benefits."  It  was  held  that  this  could 
not  be  done,  as  "he  was  a  creditor  whose  rights  had  previously  at- 
tached, and  those  rights  cannot  be  swept  away  by  such  a  scheme  as 
this  by-law."  The  most  extreme  application  of  that  case  to  the 
present  one  would  be  that  the  plaintiff  had  a  vested  right  to  receive 
the  half  pay  allowance  under  Rule  14  while  he  was  temporarily 
disabled;  but  when  the  new  degree  of  disability,  which  equally 
affected  all  in  that  class,  was  determined  and  he  was  placed  in  the 
class  of  the  permanently  disabled,  he  was  bound  by  the  designation 
in  the  amendment.  Having  received  half  pay  to  the  date  of  the 
amendment  he  is  bound  thereafter  by  the  changed  allowance.  It 
is  not  reasonable  to  hold,  that  where  an  association  at  its  formation 
has  not  anticipated  all  possible  contingencies  necessary  to  its  suc- 
cessful government,  that  the  association  must  follow  the  original 
lines  even  to  inevitable  bankruptcy  by  paying  improvident  allow- 
ances rather  than  by  preserving  the  association;  but  it  should  carry 
out  the  purposes  of  its  formation  by  the  enactment  of  a  reasonable 
amendment  to  meet  the  overlooked  contingency.  To  justify  inter- 
ference by  the  courts  and  warrant  the  overthrow  of  a  by-law,  it 


682  INTERNAL   GOVERNMENT   OF   UNIONS        [CHAP.  XIV 

must  be  shown  that  there  has  been  an  abuse  of  power  or  that  the 
by-law  is  unreasonable. 

This  new  condition  was  established  by  the  plaintiff's  consent  to 
the  revocation  of  his  license  by  the  pilot  commissioners  by  reason 
of  his  permanent  disabilitj^  so  that  he  "could  no  longer  pursue  his 
calling."  No  one  has  a  right  to  presume  that  by-laws  will  remain 
imchanged.  It  is  not  claimed  that  the  organic  law  of  the  association 
forbids  the  amendment.  The  permanence  and  welfare  of  the  pilot's 
association  required  that  there  should  be  some  special  provision 
made  for  those  who  became  premanentlj^  disabled.  It  would  be 
unreasonable  and  inequitable  that  the  permanently  disabled  should 
receive  the  half  pay  which  is  produced  entirely  by  the  young  and 
active  members.  Fifty  dollars  per  month  was  considered  a  reason- 
able contribution  from  the  funds  of  the  association  to  such  per- 
manently disabled  members.  It  can  readily  be  seen  that  on  the 
half  pay  basis  and  with  the  increasing  numbers  of  aged  and  disabled 
members  the  resources  of  the  association  would  be  so  drained  as  to 
destroy  its  object,  and  new  pilots  would  be  deterred  from  assuming 
such  a  liability  in  becoming  members. 

It  was  held  in  McCabe  v.  Father  Matthew  Total  Abstinence 
Society,  24  Hun  (N.  Y.),  149,  that  when  at  the  time  of  contract  of 
membership  there  existed  a  by-law  providing  S5.00  a  week  for  sick 
benefits,  that  a  subsequent  by-law,  passed  before  the  sickness  of  a 
member,  reducing  the  amount  of  benefits,  was  valid  and  binding. 
As  was  said  in  Supreme  Lodge  v.  Knight,  supra,  "the  change  from 
one  plan  to  the  other  was  not  an  unreasonable  exercise  of  power, 
because  it  may  well  be  that  the  system  originally  adopted,  which 
gave  no  heed  to  age,  was  so  infirm  as  to  be  incapable  of  long  endur- 
ing; it  was  not  arbitrary,  because  the  by-laws  were  rightly  amended 
and  a  desire  to  promote  the  welfare  of  the  association  brought  about 
the  change;  it  was  not  the  repudiation  of  a  debt,  because  the  right 
to  the  avails  of  the  association  provided  for  by  the  contract  was  not 
taken  away;  it  was  not  the  destruction  of  a  vested  right,  because 
the  power  to  amend  was,  as  reserved,  a  part  of  the  contract  from 
which  the  right  emanated."  The  liability  to  be  placed  in  the  new 
class  of  permanently  disabled  pilots  applied  to  all  members  on  equal 
terms. 

It  may  sometimes  happen  that  the  interests  of  an  individual,  or 
of  a  few  individuals  may  be  impaired  by  such  amendments,  but  it 
is  the  duty  of  the  association  to  protect  the  interests  of  the  many 
rather  than  of  the  few.  By  this  amendment  of  Rule  14  the  active 
pilots  have  assumed  an  obligation  which  was  neither  specified  nor 
provided  for  in  the  original  by-laws,  and  have  agreed  to  allow  their 
permanently  disabled  comrades  out  of  their  own  earnings  at  the 
rate  of  ."$600  per  year.  In  the  light  of  the  fact  that  the  sole  source 
of  income  of  the  association  is  from  the  hazardous  and  skilled  labor 
of  the  licensed  active  pilots  —  without  whom  there  could  not  be 


SECT.  I]  REGULATION    OF    INTERNAL    AFFAIRS  683 

any  association  of  this  kind  — -  the  provision  seems  to  be  generous 
and  reasonable. 

The  judgment  is  affirmed. 

Rice,  P.  J.,  dissenting.  .  .  .  The  plaintiff  was  not  bound  to  show 
that  his  disability  was  temporary.  This  might  be  impossible.  It 
was  sufficient  for  him  to  show  that  while  continuing  a  member  of 
this  association  in  active  service  and  good  standing,  complying  with 
all  its  laws  and  regulations  and  entitled  to  his  full  share  of  the  profits 
and  earnings  thereof,  he  became  disabled  by  reason  of  impairment 
of  his  eyesight,  and  therefore  could  not  pursue  his  calling,  and  that 
for  that  cause  alone  his  license  was  revoked.  His  rights  to  receive 
half  pay  became  vested  at  that  time. 

As  to  the  by-law  passed  in  April,  1900,  I  think  the  remarks  of  the 
Supreme  Court  in  Becker  v.  Berlin  Beneficial  Society,  144  Pa.  233, 
are  pertinent.  "It  may  be  a  good  by-law  as  to  future  cases,  but  at 
the  time  it  was  passed  the  plaintiff  was  something  more  than  a 
member.  He  was  a  creditor  whose  rights  had  previously  attached, 
and  whose  rights  cannot  be  swept  away  by  such  a  scheme  as  the 
by-law." 

Judge  William  W.  Porter  concurs  in  the  foregoing  dissent.^ 


ZELIFF  V.  THE    GRAND    LODGE    OF    NEW    JERSEY, 
KNIGHTS  OF  PYTHIAS 

Supreme  Court  of  New  Jersey.     1891 

53  N.  J.  L.  536 

Van  Syckel,  J.  The  Grand  Lodge  of  New  Jersey,  Knights  of 
Pythias,  is  a  corporation  organized  under  the  laws  of  New  Jersey. 
The  Henry  Clay  Lodge,  No.  45,  Knights  of  Pythias,  is  an  unincor- 
porated  company   and   voluntary   association,    consisting   of   more 

1  The  decision  was  reversed  in  206  Pa.  182.  The  latter  decision  held  that 
although  the  by-law  might  be  vaUd  as  to  those  who  in  the  future  should  lose  their 
licenses,  so  far  as  the  plaintilT  was  concerned  his  rights  could  not  be  prejudiced 
thereby.  "  When  subsequently  the  association  chose  to  alter  its  by-laws  in  order 
to  differentiate  disabilities  and  class  them  as  temporary  or  permanent  with  dif- 
ferent results  in  regard  to  benefits,  it  could  not  affect  the  rights  of  plaintiff  already 
vested.  However  binding  in  future  cases,  such  change  was  inoperative  and  a 
nullity  as  affecting  plaintiff."     Per  Mitchell,  J.,  206  Pa.  182,  184. 

In  accord  with  the  decision  in  18  Pa.  Sup.  Ct.  644,  see  Figure  v.  Mutual  Society, 
46  Vt.  362.  Compare  Harington  v.  Sendall,  [1903]  1  Ch.  921  (power  of  voluntary 
association  to  increase  its  dues  against  the  wish  of  a  minority).  Even  though  a 
by-law  or  resolution  is  passed  by  a  majority,  if  it  is  in  conflict  with  the  associa- 
tion's constitution  or  articles  of  association  it  will  be  held  invalid.  Sackett  & 
Wilhelms  Lith.  &  Printing  Co.  v.  Nat'l  Ass'n  of  Employing  Lithographers,  61 
Misc.  (N.  Y.)  150;  see  also,  Gorman  v.  O'Connor,  155  Pa.  St.  239.  The  power  to 
bind  subsequent  meetings  is  discussed  in  the  interesting  case  of  Richardson  v. 
Francestown  Union  Cong.  Soc,  58  N.  H.  187  (question  whether  a  by-law  provid- 
ing that  future  amendments  should  require  a  two-thirds  vote  could  itself  be 
altered  by  a  majority  vote). 


684  INTERNAL   GOVERNMENT   OF   UNIONS        [CHAP,  XIV 

than  seven  persons,  organized  for  social,  charitable  and  benevolent 
purposes,  organized  under  a  charter  granted  to  it  by  the  said  Grand 
Lodge.  The  Grand  Lodge  has  appellate  jurisdiction  over  the  sub- 
ordinate lodges,  and  an  appeal  lies  from  the  Grand  Lodge  to  the 
Supreme  Lodge  of  the  Knights  of  Pythias,  which  is  a  corporation 
organized  under  the  laws  of  the  District  of  Columbia.  The  regular 
weekly  benefits  paid  by  Henry  Clay  Lodge  to  sick  members  in  good 
standing  are  $6  per  week.  In  the  month  of  June,  1889,  the  relator 
was  a  member  in  good  standing.  During  that  month  the  relator  was 
charged  with  entering  into  a  conspiracy  with  certain  other  members 
of  the  association  to  black-ball,  without  cause,  all  applicants  for 
admission,  and  thereby  prevent  an  increase  of  the  membership.  In 
execution  of  this  corrupt  agreement,  it  was  alleged  that  the  relator 
did  subsequently  black-ball  an  applicant  for  membership  without 
any  just  reason. 

The  result  of  the  trial  before  the  Henry  Clay  Lodge  was  that 
the  relator  was  found  guilty,  and  suspended  from  the  lodge  for  the 
term  of  ninety-nine  years.  The  relator  thereupon  appealed  to  the 
Grand  Lodge,  which  dismissed  his  appeal  and  affirmed  the  action 
of  the  subordinate  lodge. 

The  relator  then  applied  to  this  court  for  a  writ  of  mandamus  to 
the  Henry  Clay  Lodge  and  to  the  Grand  Lodge  to  reinstate  him  in 
his  said  membership. 

That  mandamus  is  the  appropriate  remedy  to  effect  the  restora- 
tion of  a  member  of  a  private  corporation  who  has  been  irregularly 
removed  from  membership  is  res  adjudicata  in  this  court.  Sibley  v. 
Carteret  Club,  11  Vroom,  295. 

In  determining  whether  courts  will  take  jurisdiction,  a  distinction 
must  be  observed  between  cases  in  which  the  association  subjects 
its  members  to  discipline  for  immoral  conduct  or  for  violation  of  the 
rules  of  the  order,  and  those  instances  in  which  the  member  appeals 
to  the  courts  to  secure  property  rights  or  to  enforce  money  demands. 

In  regard  to  matters  of  discipline,  the  courts  will  not  interfere 
against  the  decision  of  the  members  of  a  club  professing  to  act  under 
its  rules,  unless  it  can  be  shown  either  that  the  rules  are  contrary  to 
natural  justice,  or  that  what  has  been  done  is  contrary  to  the  rules, 
or  that  there  has  been  mala  fides  or  malice  in  arriving  at  the  decision, 
or  refusal  to  give  the  member  a  hearing. 

Such  is  the  rule  declared  in  Dawkins  v.  Antrobus,  17  L.  R.,  Ch. 
Div.  615,  affirming  the  decision  of  Jessel,  Master  of  the  Rolls. 

The  weight  of  authority  in  this  country  is  to  a  like  effect.  Bac. 
Benef.  Soc,  sees.  105,  106,  and  cases  cited;  Livingston  v.  Trinity 
Church,  16  Vroom,  230. 

In  the  case  before  us  the  prosecutor  rests  his  right  to  relief  upon 
the  allegation  that  the  proceedings  against  him  are  irregular  and 
illegal,  when  tested  by  the  rules  and  constitution  and  by-laws  of  the 
defendant  association. 


SECT.  I]  REGULATION    OF    INTERNAL   AFFAIRS  685 

Assuming  this  to  be  true,  we  think  that  he  has  been  premature  in 
invoking  the  aid  of  this  court  before  he  has  exhausted  the  remedies 
to  which  he  may  resort  within  the  organization  itself. 

Under  the  rules  of  the  order,  to  which  he  voluntarily  subscribed, 
he  had  an  appeal  to  the  Grand  Lodge,  to  which  he  resorted  in  this 
case  without  success.  From  the  Grand  Lodge  an  appeal  lies  to  the 
Supreme  Lodge,  and  it  is  provided  by  the  Constitution  of  the  Su- 
preme Lodge  that  unless  an  appeal  be  taken  from  the  decision  of 
the  Grand  Lodge,  the  decision  of  the  Grand  Lodge  shall  be  conclu- 
sive. Notice  of  appeal  has  been  given  by  the  relator,  but  has  not  as 
yet  been  prosecuted  to  effect. 

The  Supreme  Court  of  Pennsylvania  holds  that  a  member  of  a 
mutual  benefit  society  must  resort,  for  the  correction  of  an  alleged 
wrong  done  to  him  as  such  member,  to  the  tribunals  of  the  society; 
and  the  judgment  of  such  tribunals,  when  resulting  fairly  from  the 
application  of  the  rules  of  the  society,  is  final.  McAlees  v.  Supreme 
Order  of  the  Iron  Hall,  13  Atl.  Rep.  755. 

The  same  rule  has  been  adopted  in  Massachusetts.  Chamberlin 
V.  Lincoln,  129  Mass.  70;  Kauber  v.  Supreme  Lodge,  137  Id.  368. 

In  Laford  v.  Deems,  81  N.  Y.  508,  the  New  York  Court  of  Appeals 
refused  to  intervene,  on  the  ground  that  courts  should  not,  as  a 
general  rule,  interfere  with  the  contentions  and  quarrels  of  voluntary 
associations,  so  long  as  the  government  is  fairly  and  honestly  ad- 
ministered, and  those  who  have  grievances  should  be  required  in  the 
first  instance  to  resort  to  the  remedies  for  redress  provided  by  their 
rules  and  regulations. 

If  there  is  a  right  of  appeal  to  a  tribunal  of  the  organization,  a 
mandavius  will  not  issue  until  that  remedy  is  exhausted.  Members 
of  such  associations,  having  voluntarily  constituted  tribunals  to 
adjust  their  differences,  should  not  be  permitted  to  resort  to  courts 
of  justice  to  set  aside  the  illegal  awards  of  such  tribunals,  as  long  as 
there  is  another  body  which  has  power  to  reverse  the  sentence,  and 
which  has  not  been  appealed  to.  The  presumption  is  that  the  Su- 
perior Court  will  correct  any  illegal  decision  in  the  forum  below. 
Screwsmen  Association  v.  Benson,  76  Tex.  552;  Harrington  v.  Work- 
ingmen's  Association,  70  Ga.  340.  .  .  . 

There  is  no  good  reason  why  he  should  be  permitted  to  repudiate 
the  engagement  into  which  he  enters  to  submit  to  the  by-laws,  rules 
and  regulations  of  the  order. 

It  is  quite  apparent  that  the  efficiency  of  such  organizations  can- 
not be  maintained  if  a  member  may  at  his  pleasure  remove  such 
controversies  into  the  civil  courts,  to  the  exclusion  of  the  tribunals 
which  have  been  established  for  their  adjudication. 

The  suggestion  that  the  Supreme  Lodge  is  a  foreign  corporation, 
over  which  this  court  can  exercise  no  jurisdiction,  and  that,  there- 
fore, the  relator  should  not  be  required  to  resort  to  his  appeal,  has 
not,  in  my  judgment,  any  controlling  force. 


686  INTERNAL   GOVERNMENT   OF   UNIONS        [CHAP.  XIV 

If,  after  review  in  the  Supreme  Lodge,  there  remains  in  the  pro- 
ceedings and  judgment  against  the  relator  any  such  illegahty  as 
will  give  him  a  standing  in  this  court,  he  may  sue  for  relief,  and  the 
associations  now  defendant  here  will  still  be  within  the  reach  of  the 
mandatory  writ. 

The  ma7idamus  should  be  denied,  with  costs. ^ 


Section  2.     Admission  of  Members 

MAYER  V.  THE  JOURNEYMEN  STONECUTTERS' 
ASSOCIATION 

Court  of  Chancery  of  New  Jersey.     1890 
47  N.  J.  Eq.  519 

Green,  V.  C.  The  complainants  comprise  two  classes — first, 
seventeen  individuals  and  copartnerships,  embracing  all  of  the  mem- 
bers of  the  Master  Stonecutters'  Association  of  the  city  of  Newark, 
a  voluntary  association,  not  incorporated,  composed  of  master 
stonecutters  engaged  in  the  business  of  cutting,  dressing  and  selling 
stone  for  building  and  other  purposes  in  the  counties  of  Essex  and 
Hudson;  and,  second,  two  individuals,  Jacob  Hahn  and  Henry 
Zimmerman,  who  are  alleged  to  be  skilled  journeymen  stonecut- 
ters residing  in  Essex  county. 

The  defendants  are  "The  Journeymen  Stonecutters'  Association 
of  Newark,  Orange,  Bloomfield,  Avondale,  and  their  vicinities," 
a  voluntary  association,  not  incorporated,  and  certain  individuals 
the  officers  of  said  defendant  association. 

Under  the  Act  of  1883  (Rev.  Sup.  p.  812,  sec.  21)  the  defendant 
association  can  be  sued,  by  its  recognized  name,  in  an  action  affect- 
ing the  common  property  or  the  joint  rights  or  liabilities  thereof; 
but  no  provision  having  been  enacted  to  authorize  voluntary  asso- 
ciations to  prosecute  actions  by  their  adopted  names,  it  was  neces- 
sary that  the  members  of  the  complainant  association  should  pros- 
ecute, in  their  individual  names,  for  any  infringement  of  any  alleged 
right  of  the  society.  .  .  . 

The  relief  prayed  for  in  the  bill  is,  that  this  court  shall  require 
the  defendant  association  to  admit  Hahn  and  Zimmerman,  and 
all  other  journeymen  stonecutters  residing  in  Newark  and  vicinity, 
to  be  members  of  the  association,  on  paying  the  customary  dues 
and  fulfilling  the  rules  imposed  upon  other  members,  and  to  give  to 
each  the  customary  card  or  other  usual  evidence  of  such  member- 
ship; and  (2)  that  the  association,  its  officers  and  agents  and  stewards, 
be  enjoined  from  denouncing  Hahn  and  Zimmerman  as  "scabs,"  or 
in  any  manner  persecuting  or  injuring  them  on  account  of  their 

1  See  Donnelly  v.  The  Supreme  Council,  Catholic  Benevolent  Legion,  106  Md. 
425.    Compare  Wuerthner  v.  Benevolent  Society,  121  Mich.  90. 


SECT.  II]  ADMISSION    OF    MEMBERS  687 

exercising  their  lawful  trade  without  being  admitted  to  such  member- 
ship; and  from  attempting  to  coerce  or  intimidate  the  complainants, 
who  are  master  stonecutters,  or  any  other  master  stonecutters,  from 
employing  Hahn  and  Zimmerman  or  other  skillful  journeymen, 
whether  members  of  said  association  or  not,  by  means  of  strikes, 
boycotts  or  other  methods  of  violence  or  intimidation;  and  that  an 
account  may  be  taken  of  the  damages  and  losses  suffered  by  the 
complainants  respectively,  by  reason  of  the  action  of  the  association 
defendant,  its  officers  and  agents,  and  that  they  may  be  decreed  to 
pay  the  same,  with  a  prayer  for  further  relief. 

This  prayer  for  relief  is  based  on  the  allegations  that  the  master 
stonecutters  complainants  are,  in  the  prosecution  of  their  business, 
constantly  in  need  of  a  body  of  skilled  journeymen  stonecutters,  in 
order  to  enable  them  to  fulfill  their  contracts;  that  Hahn  and  Zim- 
merman are  such  skilled  journeymen  stonecutters,  desirous  of  obtain- 
ing employment  at  their  trade,  but  prevented  from  doing  so  by  the 
acts  of  the  defendants  complained  of.  These  are  recited  substantially 
as  follows,  viz.:  That  it  is  the  avowed  purpose  of  the  association 
defendant  to  embrace  within  its  membership  all  the  journeymen 
stonecutters  who  shall  be  permitted  to  pursue  their  trade  in  Newark 
and  its  vicinity;  to  prevent  any  journeyman  stonecutter  not  a  mem- 
ber of  the  association  from  working  at  his  trade  in  Newark  and 
vicinity;  and  to  coerce  any  master  stonecutter  to  refuse  to  employ 
any  such  journeyman  not  a  member  of  the  association.  That  the 
means  adopted  by  the  association  to  accomplish  those  objects  are 
denunciations  and  persecution  applied  to  the  offending  workmen, 
and  boycotting  and  strikes  applied  to  the  offending  employer. 

That  the  by-laws  adopted  by  the  said  association  provide  that 
any  member  who  works  in  any  place  styled  in  the  association  as 
a  "scab-shop,"  or  who  violates  the  constitution  of  the  association, 
is  to  be  denounced  as  a  scab,  and  forfeits  his  claim  as  a  member. 
That  similar  methods  of  coercion  are  employed  by  the  association 
to  prevent  journeymen  not  members  from  working,  and  to  deter 
employers  from  giving  them  work,  by  declaring  the  shops  of  such 
employers  "scab-shops,"  and  publicly  declaring  such  workmen 
as  "scabs,"  and  also  as  to  both  such  workmen  and  employers  by 
resorting  to  strikes  and  boycotts. 

That  the  by-laws  of  the  association  also  provide  for  a  "shop  stew- 
ard," to  be  placed  in  every  master  stonecutter's  shop  or  yard,  to  see 
that  the  rules  of  the  association  are  carried  out;  that,  under  the 
practice  and  regulations  of  the  association,  such  "shop  steward" 
is  required  immediately  to  order  a  strike  of  all  the  workmen  in  any 
shop,  if  the  employer  allows  any.  journeyman  to  work  unless  he  pro- 
duces a  card  of  the  association  showing  that  he  is  a  member  thereof 
in  good  standing,  and  if  such  strike  should  prove  inefficient,  it  is  the 
policy  and  practice  of  the  association  to  coerce  the  employer  further 
by  boycotting  and  other  alleged  unlawful  deeds. 


688  INTERNAL   GOVERNMENT   OF   UNIONS        [CHAP.  XIV 

That  in  the  month  of  May,  1889,  or  about  that  time,  the  associa- 
tion, by  resolution,  determined  to  admit  no  more  members  for  the 
space  of  one  year,  thus  excluding  from  employment  all  stonecutters 
seeking  work  not  already  admitted  to  membership;  that  in  the  sum- 
mer of  1889  the  complainants  Hahn  and  Zimmerman,  who  reside  in 
Essex  county,  with  families  dependent  on  their  labor,  apphed  for 
admission  to  said  association,  and  offered  to  pay  all  dues  and  contribu- 
tions, and  to  fulfill  its  obligations,  in  order  that  they  might  obtain 
work  at  their  trade;  but  their  application  was  refused  on  no  other 
ground  except  the  said  resolution  to  exclude  all  new  members;  that 
afterwards  Hahn  and  Zimmerman  applied  to  two  of  the  complainant 
master  stonecutters  for  work  as  journej^men,  but  they  were  refused 
such  emploj'ment  on  no  other  grounds  than  that  they  were  not  mem- 
bers of  the  association,  and  that  their  employment  would  result, 
under  the  rules  of  the  association,  in  a  general  strike  of  the  other 
workmen  and  in  disaster  to  their  business. 

It  is  further  alleged  that,  in  consequence  of  their  exclusion  by  said 
association,  Hahn  and  Zimmerman  have  been  deprived  of  the  power 
of  exercising  their  trade,  in  which  they  could  have  made  a  living  and 
supported  their  families,  and  have  been  compelled  to  abandon  their 
trade  and  work  at  inferior  labor  with  lower  wages.  .  .  . 

The  bill  asserts  that  the  right  of  the  two  to  exercise  their  trade 
is  a  right  of  property,  and  the  right  of  the  master  stonecutters  to 
employ  laborers  to  work  and  needed  in  their  business  is  also  a  right 
of  property,  and  that  the  action  and  proceedings  of  the  association 
deprive  complainants  of  their  said  rights  of  property,  and  are  sub- 
versive of  the  interest  of  society.  .  .  . 

It  appears  that  the  complainants  Hahn  and  Zimmerman  did 
make  some  effort  to  obtain  admission  into  the  defendant  associa- 
tion, but  it  is  quite  clear  that  they  did  not  make  application  for 
membership  regularly,  as  required  by  the  by-laws,  and  that  the 
question  was  never  considered  or  passed  upon  by  that  body.  But 
if  it  were  otherwise,  has  this  court  power  to  require  the  admission 
of  a  person  to  membership  in  a  voluntary  association,  when  it  has 
been  denied  by  the  society.^ 

These  organizations  are  formed  for  purposes  mutuallj'  agreed 
upon;  their  right  to  make  by-laws  and  rules  for  the  admission  of 
members  and  the  transaction  of  business  is  unquestionable;  they 
may  retjuire  such  qualifications  for  membership  and  such  formalities 
of  election  as  they  choose;  they  may  restrict  membership  to  the 
original  promoters,  or  limit  the  number  to  be  thereafter  admitted. 
The  very  idea  of  such  organizations  is  association  mutually  ac- 
ceptable, or  in  accordance  with  regulations  agreed  upon;  a  power 
to  rec^uire  the  admission  of  a  person  in  any  way  objectionable  to  the 
society  is  repugnant  to  the  scheme  of  its  organization.  While  courts 
have  interfered  to  inquire  into  and  restrain  the  action  of  such  societies 
in  the  attempted  exclusion  of  persons  who  have  been  regularly  ad- 


SECT.  II]  ADMISSION    OF    MEMBERS  689 

mitted  to  membership,  no  case  can,  I  think,  be  found  where  the  power 
of  any  court  has  been  exercised,  as  sought  in  this  case,  to  require  the 
admission  of  any  person  to  original  membership  in  any  such  vohmtary 
association.  Courts  exist  to  protect  rights,  and  where  the  right  has 
once  attached  they  will  interfere  to  prevent  its  violation,  but  no 
person  has  any  abstract  right  to  be  admitted  to  such  membership; 
that  depends  solely  upon  the  action  of  the  society,  exercised  in  ac- 
cordance with  its  regulations,  and  until  so  admitted  no  right  exists 
which  the  courts  can  be  called  upon  to  protect  or  enforce. 

Neither  is  it  clear  upon  what  ground  of  jurisdiction  the  court  can 
inquire  into  the  action  of  the  defendant  association  in  the  passage 
of  the  resolution  complained  of.  It  is  alleged  in  the  bill  that  this 
was  to  shut  the  door  to  admission  to  membership  for  one  year,  and 
to  confine  employment  to  the  present  membership.  It  appears  from 
the  testimony,  however,  that  it  was  passed  to  prevent  the  admission 
of  persons  known  as  "harvesters."  This  is  a  term  used  in  the  trade 
to  designate  foreigners,  skilled  workmen,  who  come  to  this  country 
when  work  is  plenty  and  wages  high,  get  employment,  and  in  the 
winter  return  with  their  earnings  to  their  homes  in  foreign  countries; 
and  that  such  was  its  scope  is  shown  by  the  fact  that  persons,  not 
coming  within  that  class,  were  admitted  to  membership  after  the 
passage  of  the  resolution.  In  the  light  of  national  legislation,  with 
reference  to  the  importation  of  contract  labor,  it  can  scarcely  be 
said  that  such  action  is  against  the  policy  of  the  law.  But  the  body 
has  clear  right  to  prescribe  qualifications  for  its  membership ;  it  may 
make  it  as  exclusive  as  it  sees  fit;  it  may  make  the  restriction  on 
the  line  of  citizenship,  nationality,  age,  creed  or  profession,  as  well 
as  numbers.  This  power  is  incident  to  its  character  as  a  voluntary 
association,  and  cannot  be  inquired  into,  except  on  behalf  of  some 
person,  who  has  acquired  some  right  in  the  organization,  and  to 
protect  such  right.  .  .  . 

There  is  nothing  in  the  evidence  to  show  that  the  defendants 
threaten  to  use  any  violence  or  commit  any  trespass,  or  do  any  overt, 
positive  act  of  injury.  .  .  .  There  is  no  evidence  to  sustain  the 
assumption  that  any  unlawful  act  to  the  injury  of  the  complainants' 
rights  of  property  is  threatened  by  the  defendants.  They  have 
agreed  not  to  work  with  any  but  members  of  their  association,  and 
not  to  work  for  any  employer  who  insists  on  their  doing  so,  by  with- 
drawing from  his  employment.  So  long  as  they  confine  themselves 
to  peaceable  means  to  effect  these  ends,  they  are  within  the  letter 
and  spirit  of  the  law,  and  not  subject  to  the  interference  of  the  courts. 

These  considerations  result  in  the  conclusion  that  this  court  has 
no  jurisdiction  to  grant  the  relief  prayed  for,  and  that  the  bill  must 
be  dismissed.^ 

'  Accord:  McKane  v.  Adams,  123  N.  Y.  609;  Branagan  v.  Buckman,  67  Misc. 
242,  248;  Richardson  v.  The  Union  Congregational  Society  of  Francestown,  58 
N.  H.  187. 


690  INTERNAL   GOVERNMENT   OF   UNIONS        [CHAP.  XIV 


Section  3.     Discipline  of  Members 

BURNS  V.  BRICK-LAYERS'  BENEVOLENT  & 
PROTECTIVE  UNION 

City  Court  of  Brooklyn.  1891 

14  N.  Y.  Supp.  361 

Clement,  C.  J.  The  plaintiff  brought  this  action,  and  asked 
judgment  in  his  favor  (1)  that  a  "strike"  claimed  to  have  been 
ordered  by  the  defendant  on  or  about  January  2,  1889,  be  declared 
irregular  and  void ;  (2)  that  four  fines,  amounting  to  $75,  imposed  on 
plaintiff  be  declared  null  and  void;  (3)  that  the  plaintiff  be  rein- 
stated in  defendant,  and  to  his  rights  and  privileges,  as  a  union  man, 
and  that  he  be  given  a  pass-card  to  show  that  he  is  a  member  of 
defendant  in  good  standing.  The  learned  judge  at  special  term 
found  that  a  "strike"  had  not  been  ordered  bj^  the  defendant; 
that  the  fines  complained  of  were  legally  imposed ;  and  that  plaintiff 
was  properly  deprived  of  his  pass-card;  and  rendered  judgment  in 
favor  of  the  defendant. 

We  think  that  the  question  whether  or  not  a  strike  was  ordered  by 
the  defendant  is  entirely  immaterial,  for  the  reason  that  the  plaintiff 
was  fined  because  he  worked  for  an  employer  who  did  not  pay  his 
men  weekly,  and  because  he  worked  with  non-union  men,  and  for 
no  other  reasons.  By  sec.  9  of  the  working  code  of  the  defendant  it 
was  provided  that  the  brick-layers  should  be  paid  every  Saturday, 
and  by  sec.  13  it  was  further  provided  that  no  member  should  work 
on  the  same  job  with  a  non-union  man.  It  is  conceded  that  the  plain- 
tiff worked  for  several  weeks  for  one  Thomas  H.  Robbins,  who  did 
not  pay  his  men  on  every  Saturday;  and  it  is  also  conceded  that 
Mr.  Robbins  employed,  during  the  same  period,  non-union  brick- 
layers. The  plaintiff  clearh^  violated  the  rules  of  the  union,  and 
therefore  whether  a  strike  was  ordered  against  Mr.  Robbins  properly 
or  not  need  not  be  considered  in  this  case. 

The  next  question  is  as  to  the  relief  asked  that  the  fines  for  $75 
be  declared  void.  We  are  not  called  upon  to  decide  whether  the 
fines  were  lawfully  imposed,  for  the  reason  that  the  plaintiff  has  not 
exhausted  his  remedy  in  the  union.  The  executive  committee  may 
not  have  acted  legally  in  fining  the  plaintiff  without  a  trial,  but  their 
action  was  valid  until  reversed  by  the  act  of  the  union;  and  the 
plaintiff,  as  soon  as  he  learned  that  the  fines  stood  against  him, 
should  have  appealed,  and  cannot  maintain  an  action  in  equity 
until  he  has  exhausted  his  remedy  in  the  society.  This  point  seems 
well  settled  l^y  a  number  of  authorities.  Poultney  v.  liadiman,  31 
Hun,  49;  Lafond  v.  Deems,  81  N.  Y.  507;  (iebhard  v.  New  York 
Club,  21  Abb.  N.  C.  248.    The  plaintiff  was  fined  on  four  occasions, 


SECT.  Ill]  DISCIPLINE    OF    MEMBERS  691 

as  follows:  January  7,  1889,  SIO;  January  14th,  $25;  January  28th, 
$25;  February  11,  1889,  $15.  He  paid  $25,  and  on  July  29th  was 
in  default  over  six  months  for  the  fine  of  January  28th.  By  article 
10  of  the  by-laws,  any  member  in  arrears  for  fines  or  dues  over  six 
months  was  prohibited  from  working  until  the  same  were  paid. 
The  plaintiff  was  deprived  of  his  card  on  July  29,  1889,  and  at  that 
time  was  in  arrears  over  six  months.  The  card  was  properly  taken 
away  from  him,  if  the  fines  were  valid.  We  have  examined  all  the 
questions  raised  by  the  appellant,  and  conclude  that,  for  the  reasons 
above  stated,  the  appeal  is  not  well  taken. 

Judgment  affirmed,  with  cods. 

O'CONNOR  V.  MORRIN 

SuPKEME  Court  of  New  York.     1919 

109  Misc.  379 

Manning,  J.  The  plaintiff  O'Connor,  as  president  of  Local  No.  35 
of  Long  Island  of  the  International  Association  of  Bridge,  Structural 
and  Ornamental  Ironworkers,  and  the  plaintiffs  Gillen  and  Slattery, 
as  individual  members  of  said  local,  bring  this  action  against  Patrick 
J.  Morrin,  as  president  of  the  International  Association  of  Bridge, 
Structural  and  Ornamental  Ironworkers,  and  others,  for  equitable 
relief  and  also  for  an  injunction,  the  plaintiffs  claiming  that  said 
Local  No.  35  and  the  individual  members  thereof  have  been  illegally 
suspended  by  the  parent  organization,  and  that  by  reason  of  such 
suspension  they  have  suffered  and  are  likely  to  suffer  damage  to 
what  they  call  their  vested  rights  in  and  to  certain  benefits  which 
they  say  they  are  entitled  to  by  reason  of  their  membership  in  the 
organization.  The  International  Association  and  the  other  defend- 
ants herein,  appearing  specially  upon  this  motion  for  injunctive 
relief,  contend  that  the  plaintiffs'  proper  forum  is  within  the  organiza- 
tion itself,  and  that  any  alleged  wrongs  which  the  plaintiffs  have 
suffered  can  be  adequately  righted  in  the  manner  provided  for  by  the 
rules,  regulations  and  by-laws  of  the  organization  itself,  and  that  as 
the  plaintiffs  have  failed  so  far  to  exhaust  their  remedy  within  the 
organization,  the  court  ought  not  to  interfere  and  grant  the  relief 
prayed  for.  I  am  inclined  to  think  that  the  position  assumed  by  the 
defendants  is  correct,  as  it  affirmatively  appears  by  the  plaintiffs' 
complaint  and  also  from  the  moving  papers  herein  that  an  appeal 
lies  from  the  decision  of  the  executive  board  to  the  succeeding  con- 
vention, and  that  this  convention  of  the  International  Association 
will  be  held  at  Cleveland,  Ohio,  on  or  about  September  14,  1920; 
and  it  further  appears  from  an  allegation  of  said  complaint  that  the 
plaintiff  Local  Union  No.  35  and  the  individual  plaintiffs  Slattery 
and  Gillen  intend  to  appeal  from  the  decision  of  the  executive  board 
to  the  succeeding  convention.  It  is  also  made  to  appear  that  pend- 
ing the  hearing  and  determination  of  that  appeal  the  rights  and 


692  INTERNAL   GO\^RNMENT   OF   UNIONS        [CHAP.  XIV 

interests  of  the  individual  plaintiffs,  and  all  other  members  of  the 
Local  Union  No.  35,  are  fully  protected  by  a  provision  of  the  by- 
laws which  enables  them  to  become  affiliated  with  any  other  local 
union  within  the  district,  without  any  charge  whatsoever,  and  there- 
fore they  are  in  no  danger  of  suffering  damage  for  the  loss  of  their 
benefit  rights.  This  being  the  situation,  I  am  inclined  to  the  belief 
that  the  court  should  not  be  called  upon  to  interfere  in  the  internal 
dissension  occurring  within  the  organization  itself.  Perhaps  the 
rule  cannot  be  better  stated  than  in  the  language  of  Miller,  J.,  in  the 
case  of  Lafond  v.  Deems,  81  N.  Y.  514,  where  he  said:  "Courts 
should  not,  as  a  general  rule,  interfere  with  the  contentions  and 
quarrels  of  voluntary  associations,  so  long  as  the  government  is 
fairly  and  honestly  administered,  and  those  who  have  grievances 
should  be  required  in  the  first  instance  to  resort  to  the  remedies  for 
redress  provided  by  their  rules  and  regulations." 

To  the  same  effect  see  Johansen  v.  Blume,  53  App.  Div.  526; 
Lewis  V.  Wilson,  50  Hun,  166;  Poultney  v.  Bachman,  31  Id.  49; 
Burns  v.  Bricklayers'  Union,  14  N.  Y.  Supp.  361. 

The  application  for  injunction  pendente  lite  is,  therefore,  denied. 

Application  denied. 


JETTON-DEKLE  LUMBER  CO.  v.  MATHER 

Supreme  Court  of  Florida.     1907 

53  Fla.  969 

CocKRELL,  J.  A  bill  of  complaint  was  filed  in  the  Circuit  Court 
for  Hillsborough  county  by  the  Jetton-Dekle  Lumber  Co.,  a  corpora- 
tion, for  an  injunction  against  various  officers  and  members  of  the 
Building  Trades  Council,  a  voluntary  organization  of  representa- 
tives of  organized  labor.  Carpenters'  Union  No.  696  of  the  United 
Brotherhood  of  Carpenters  and  Joiners,  the  Bricklayers',  Masons' 
and  Plasterers'  Union  No.  3,  Painters'  Union  No.  88,  Sheet  Metal 
Workers'  Union  No.  88,  Electricians'  Union  No.  108,  Plumbers' 
Union  No.  Ill,  and  the  Central  Trades  Labor  Assembly. 

The  bill  alleges  in  substance  that  the  complainant  is  a  general 
contractor  and  large  employer  of  labor;  that  in  performance  of 
building  contracts  it  had  been  accustomed  to  sublet  the  painting 
contracts;  that  it  had  on  hand  various  contracts  in  which  the  paint- 
ing has  been  so  sublet  and  that  it  was  incumbent  upon  it  to  complete 
the  contracts  under  heavy  penalties;  that  a  strike  of  the  Painters' 
Union  against  the  painting  contractors  was  declared  February  25, 
1906,  and  had  ever  since  remained  in  effect;  that  owing  to  such 
strike  it  became  necessary  to  secure  non-union  painters,  and  a  general 
strike  resuhcd. 

In  view  of  the  modification  of  the  iiijiinctioii,  which  modification 
alone  is  before  us  for  review,  but  one  paragraph  of  the  bill  need  be 
quoted. 


1 


I 


SECT,  in]  DISCIPLINE    OF   MEMBERS  693 

"16th.  And  your  orator  further  alleges  that  the  said  conspiring 
labor  unions  and  the  said  liuilding  Trades  Council  have  further  con- 
spired and  confederated  together  for  the  purpose  of  preventing  any 
persons  but  members  of  the  said  labor  unions  from  obtaining  work 
or  employment  in  the  city  of  Tampa  in  the  various  departments  of 
labor  to  which  members  of  the  said  unions  belong,  respectively,  and 
to  enforce  the  object  of  such  conspiracy  by  threatening  to  boycott 
and  by  boycotting  all  employers  employing  other  than  union  laborers 
belonging  to  the  said  respective  labor  unions,  and  your  orator  further 
alleges  that  each  of  the  said  conspiring  labor  unions  has  adopted 
rules  forbidding  its  members  from  working  for  any  emploj^er  who 
shall  employ  non-union  labor,  and  that  the  said  rules  have  been  so 
adopted  and  contrived  for  the  purpose  and  with  the  design  and  in- 
tention, and  in  pursuance  of  a  conspiracy  on  the  part  of  the  said 
labor  unions,  to  prohibit  the  employment  of  any  laborers  in  the  city 
of  Tampa  except  members  of  the  said  unions,  and  with  the  purpose, 
design  and  intention  of  securing  the  entire  field  for  the  labor  in  the 
city  of  Tampa  to  members  of  the  said  respective  unions,  and  exclud- 
ing all  other  persons  therefrom,  and  that  the  said  rules,  so  made  in 
pursuance  of  the  said  conspiracy,  have  been  heretofore  and  are  now 
enforced  and  carried  out  by  the  said  conspiring  labor  unions,  and  the 
enforcement  and  carrying  out  thereof  is  one  of  the  main  objects  to 
which  the  efforts  of  the  said  conspiring  labor  unions  have  been  here- 
tofore, and  are  now,  directed,  and  members  of  the  said  and  other 
affiliated  labor  unions  in  the  various  departments  of  labor  are  bound 
to  compl}^  with  the  said  rules  under  penalties  therein  prescribed,  and 
a  continued  failure  to  comply  therewith  on  the  part  of  such  members 
renders  them  liable  to  expulsion,  and  to  be  considered  and  treated 
as  non-union  workmen." 

The  injunction  prayed  for  was  granted  without  notice.  There- 
upon the  defendants  answered  and  asked  that  the  injunction  be  dis- 
solvecf. 

The  answer  denies  all  cast  of  violence,  threats  or  intimidation, 
but  avers  that  the  agreement  which  had  existed  between  the  painters' 
union  and  the  master  painters  wherein  the  daily  wage  was  fixed  at 
$3.28  a  day  if  the  work  was  done  for  the  master  painters  and  $3.78 
a  day  if  done  for  others,  was  repudiated  and  annulled  by  the  national 
association,  and  that  the  master  painters  would  enter  into  no  further 
agreement  satisfactory  to  the  union  painters,  and  employed  non- 
union painters,  "whereupon  the  members  of  the  painters'  union  re- 
fused to  work  on  any  job  or  contract  on  which  non-union  painters 
were  employed,  as  they  have  a  legal  right  to  do,  and  notified,  as 
under  their  rules  and  regulations  they  had  a  right  to  do,  other  unions 
of  their  action,  and  the  defendants  say  that  it  is  a  rule  of  their  unions 
that  they  and  their  members  will  not  work  in  shops  or  on  contracts 
in  which  or  on  which  laborers  are  emploj^ed  who  do  not  belong  to  the 
unions,  and  they,  through  their  officers^  have  so  notified  the  com- 


694  INTERNAL   GOVERNMENT   OF   UNIONS        [CHAP.  XIV 

plainant";  further,  that  they  will  not  use  materials  furnished  by 
one  who  employs  non-union  laborers;  the  carpenters  and  other 
union  workmen  w^ho  were  bound  by  similar  rules  also  went  out  on 
strike. 

Upon  the  hearing  for  dissolution  upon  bill,  answer  and  affidavits, 
the  following  provisional  order  was  entered:  "It  is  ordered  and 
decreed  that  the  temporary  injunction  issued  herein  on  May  5th, 
ult.,  be  modified  as  follows:  That  the  said  defendants  and  each  of 
them,  their  members,  officers,  agents,  and  representatives,  and  each 
and  every  of  them  be,  and  they  are  hereby  restrained  and  enjoined, 

1st.  From  using  any  means,  methods  or  devices  whatever  to  in- 
timidate or  to  prevent  by  any  kind  of  threats,  violence  or  coercion 
any  person  or  persons,  whether  members  of  any  labor  union  or  not, 
from  accepting  employment  from  the  complainant  in  any  capacity. 

2d.  From  using  any  means,  methods  or  devices  to  prevent  the 
complainant  from  employing  any  person  or  persons  whomsoever, 
whether  members  of  any  labor  union  or  not,  and  from  interfering 
with  any  employee  of  the  complainant  while  in  its  employment,  and 

3d.  From  boycotting  or  attempting  to  boycott  the  complainant's 
business,  by  using  any  means,  method  or  device  to  prevent  any  per- 
son, firm  or  corporation  from  selling  to  or  purchasing  from  the  com- 
plainant any  building  material  or  other  article  of  value.  Provided, 
that  nothing  herein  contained  is  intended  to  interfere  with  the 
several  defendants  as  unions  or  societies  in  imposing  upon  their  own 
members  such  pains  and  penalties  as  may  be  prescribed  b}'  their 
respective  constitutions,  by-laws,  rules  or  regulations,  in  such  case 
made  and  provided. 

It  is  further  ordered  that  this  restraining  order  shall  remain  in 
force  until  the  further  decree  of  the  court  in  the  premises." 

From  the  modification  contained  in  the  proviso  the  complainant 
appeals,  assigning  as  error  this  proviso,  the  defendants  assign  no 
cross  errors  and  are  not  complaining  here. 

Fortunately  there  have  been  few  differences  in  this  section  of 
this  country  between  labor  and  capital,  and  this  is  the  first  case 
that  has  reached  this  court.  .  .  . 

In  a  large  majority,  practically  all  the  cases  we  have  examined, 
we  find  complications  arising  from  boycotts,  picketing,  intimidations 
or  even  violence.  The  instant  case,  as  we  apprehend  it,  is  one  in- 
volving the  strike  only. 

Unquestionably,  an  individual  can  stop  work  at  any  time  without 
cause,  being  liable  only  for  a  breach  of  contract,  and  no  element  of 
contract  as  between  the  complainant  and  these  defendants  is  alleged. 
Does  the  fact  that  more  than  one  individual  has  quit  work  make  a 
difference  under  the  circumstances  above  stated?  We  may  assume 
that  it  is  not  universally  true  that  many  may  do  what  one  may  law- 
fully do,  though  this  must  be  said  with  reservation,  and  that  a  "con- 
spiracy" may  cause  a  wrong  which  one  man  acting  by  himself  could 


SECT.  Ill]  DISCIPLINE    OF   MEMBERS  695 

not  commit.  But  before  the  courts  can  punish  or  prevent  a  con- 
spiracy, either  the  act  conspired  or  the  manner  of  its  doing  must  be 
unlawful.  Are  not  both  alternatives  absent  in  the  case  of  a  simple 
strike?  It  is  certainly  lawful  to  attempt  by  negotiation  or  other 
peaceable,  legitimate  ways  to  get  higher  pay  for  one's  labor,  and  if 
the  demand  is  not  met  to  go  elsewhere  with  one's  labor  or  to  sit  idle 
if  needs  be  until  satisfactory  arrangements  are  made.  Labor  unions 
in  and  of  themselves  cannot  be  said  to  be  unlawful,  and  yet  one  of 
the  prime  objects  of  their  existence  is  by  combinations  of  the  supply 
to  regulate  the  demand.  Some  of  the  cases,  particularly  the  English 
cases,  stress  the  motive  underlying  the  strike  and  apparently  hold 
that  if  the  strike  is  to  better  the  condition  of  the  workman  it  is  law- 
ful, but  if  it  be  to  punish  the  employer  it  is  unlawful.  If  this  be  the 
correct  delimitation  this  case  comes  up  to  the  rule;  there  is  nothing 
personal  to  the  complainant  in  the  strike,  but  simply  and  entirely  an 
endeavor  to  obtain  advantage  for  the  defendants. 

No  mandatory  injunction  is  asked  and  nothing  can  possibly  be 
done  as  to  those  laborers  who  voluntarily  left  their  work  and  are 
voluntarily  remaining  away;  but,  says  the  appellant,  these  various 
labor  unions  under  the  modification  can  use  moral  suasion,  moral 
coercion  upon  its  respective  members  by  fines  and  threats  of  expulsion. 
This  was  a  risk  voluntarily  assumed  by  the  members  entering  the 
unions,  and  if  no  longer  willing  to  pay  the  price  —  if  the  advantages 
derived  are  not  equal  to  the  burdens  assumed,  each  member  has  a 
perfect  right  to  withdraw  from  the  union,  to  seek  to  get  back  his 
former  employment  and  to  be  protected  therein  by  the  injunction 
still  in  force. 

It  can  hardly  be  questioned  that  the  decided  weight,  if  not  the 
universal  rule  of  the  modern  American  cases  sustains  the  action  of 
the  Circuit  Court  in  refusing  to  extend  the  effects  of  the  injunction 
so  as  to  include  the  peaceable  enforcment  by  labor  unions  of  its  reason- 
able rules.  See  Karges  Furniture  Co.  v.  Amalgamated  Woodworkers' 
Local  Union  No.  131,  165  Ind.  421,  75  N.  E.  Rep.  877;  Gray  v. 
Building  Trades  Council,  91  Minn.  171,  97  N.  W.  Rep.  633,  63  L.  R. 
A.  753;  Longshore  Printing  Co.  v.  Howell,  26  Oregon,  527,  38  Pac. 
Rep.  547;  Macauley  v.  Tierney,  19  R.  I.  255,  33  Atl.  Rep.  1;  Jensen 
V.  Cooks'  &  Waiters'  Union  of  Seattle,  39  Wash.  531,  81  Pac.  Rep. 
1069;  National  Protective  Ass'n  of  Steam  Fitters  &  Helpers  v.  Cum- 
ming,  170  N.  Y.  315,  63  N.  E.  Rep.  369,  s.  c.  58  L.  R.  A.  135;  Arthur 
V.  Oakes,  24  U.  S.  App.  239,  s.  c.  63  Fed.  Rep.  310,  s.  c.  25  L.  R.  A. 
414.  In  Cooke  on  Trade  and  Labor  Combinations,  p.  34,  n.  1,  it  is 
said  that  the  only  modern  case  to  hold  a  strike  illegal  is  Mapstrick 
V.  Ramge,  9  Neb.  390,  and  that  it  is  clear  the  Nebraska  court  did  not 
consider  the  point. 

Is  there  any  declared  policy  in  this  state  to  force  us  to  put  our- 
selves out  of  alignment  with  our  sister  states.^  Especially  must  this 
be  clear  before  we  would  interfere  to  lay  a  heavy  hand  of  injunction 


696  INTERNAL   GOVEENMENT   OF   UNIONS        [CHAP.  XIV 

where  the  circuit  judge,  more  famihar  than  ourselves  with  the  con- 
ditions confronting  the  city  of  Tampa,  has  refused  to  do  so.  .  .  . 

We  see  no  special  applicability  of  either  sec.  2405  or  2420  of  the 
Revised  Statutes  of  1892  to  the  case  here  made.  Nor  does  the  fact 
that  the  common  law  of  England  in  regard  to  crimes  is  by  statute  in 
force  in  Florida  necessarily  control  us  now.  The  English  law  as  to 
indictable  conspiracy  against  workmen  is  so  interwoven  with  harsh 
statutes  passed  in  behalf  of  those  in  power  that  are  wholly  incon- 
sistent with  our  ideas  of  freedom  of  contract,  of  life,  liberty  and  the 
pursuit  of  happiness,  as  not  to  be  applied  in  its  rigor  in  this  coun- 
try. ... 

Following  the  correct  principle  and  the  weight  of  the  modern 
American  cases  in  so  far  as  we  are  able  to  ascertain  the  principle  and 
the  weight,  we  find  no  error  in  the  modification  of  the  injunction, 
and  therefore  it  is  affirmed. 

Shackleford,  C.  J.,  and  Whitfield,  J.,  concur; 

Taylor,  Hocker,  and  Parkhill,  JJ.,  concur  in  the  opinion.^ 


CONNELL  V.  STALKER 

Supreme  Court  of  New  York.     1897 

21  Misc.  609 

Daly,  P.  J.  The  plaintiff  obtained  a  verdict  against  the  Jour- 
neyman Stone  Cutters'  Association,  unincorporated,  of  which  he 
is  a  member,  for  $243,  a  sum  agreed  to  be  the  regular  wages  of  a 
stone  cutter  for  nine  weeks,  the  period  for  which  he  was  deprived 
of  work  on  account  of  the  action  of  the  association  against  him. 
The  defense  to  the  action  was  that  while  treasurer  of  the  associa- 
tion he  refused  to  surrender  his  books  and  papers  to  a  special  com- 
mittee appointed  to  investigate  a  certain  bill  or  account.  The  plain- 
tiff claims  that  under  the  by-laws  he  was  required  only  to  surrender 
his  books  and  papers  to  the  trustees,  to  be  audited,  or  to  be  delivered 
to  his  successor. 

It  was  proved  that  on  the  plaintiff's  refusal  to  turn  over  his  books 
to  the  special  committee,  the  association,  at  a  regular  meeting, 
adopted  a  motion  that  the  members  refuse  to  work  with  him,  and 
that  in  pursuance  thereof  when  plaintiff  went  to  work  the  next  day 
at  St.  Luke's  Hospital,  where  he  was  employed  with  the  members 
of  the  association,  they  were  immediately  called  out  by  the  walking 

'  Accord:  Harris  v.  Aiken,  70  Kan.  516;  Master  Stevedores'  A.ssn.  v.  Walsh, 
2  Daly  (N.  Y.),  1;  Otto  j;.  Journeymen  'i^ailors'  Protective  &  Benevolent  Union, 
75  Cal.  308  (semble).  See  also,  Gray  v.  Hldj?.  Trades  Council,  91  Minn.  171; 
Longshore  Printing  &  Pub.  Co.  v.  Howell,  26  Ore.  527;  Mayer  v.  Journeymen 
Stonecutters'  As.sn.,  47  N.  J.  Eq.  519;  Thomas  v.  Cincinnati,  etc.,  Ry.  Co.,  62 
Fed.  803,  817;  Brewster  v.  Miller's  Sons  Co.,  101  Ky.  368. 

Contra:  L.  D.  Willcutt  &  Sons  Co.  v.  Driscoll,  200  Mass.  110  (Sheldon,  J.,  and 
others  dissenting). 


I 


SECT.  Ill]  DISCIPLINE    OF    MEMBERS  697 

delegate,  and  the  plaintiff  had  to  be  discharged  from  that  employ- 
ment, in  order  to  induce  them  to  resume  work;  also,  that  for  nine 
weeks  he  was  similarly  excluded  from  working  in  the  city  of  New 
York,  as  all  the  stone  cutters  there  were  union  men. 

It  sufficiently  appears  that  by  the  action  of  the  association  in 
adopting  the  motion  in  question,  the  plaintiff  was,  in  effect,  sus- 
pended from  his  rights  as  a  member,  and  the  (}uestion  for  the  trial 
court  to  decide  was  whether  such  action  was  within  any  power  con- 
ferred by  the  constitution  and  by-laws,  which  formed  the  contract 
between  the  parties.  White  v.  Brennan,  4  Abb.  Prac.  Rep.  (n.  s.) 
162.  The  only  authority  contained  in  the  constitution  or  by-laws 
for  suspending  a  member  appears  to  be  that  conferred  by  article 
XII  of  the  by-laws  which  reads  as  follows: 

"Any  member  who  will  at  any  time,  work  in  any  place  styled 
by  this  association  a  scab  shop,  or  violate  this  constitution  and  by- 
laws in  any  aggravated  manner,  shall  be  denounced  by  us  as  a  scab, 
and  shall  forfeit  all  claim  to  this  association  as  a  member;  and  be- 
fore being  admitted  again  as  a  member,  he  shall  pay  a  reinitiation 
fee  not  exceeding  $80.00,  and  not  less  than  $20.00,  to  be  paid  at  the 
rate  of  not  less  than  $5.00  a  month,  no  part  of  the  fine  imposed  to 
be  remitted." 

It  does  not  appear  that  in  refusing  to  surrender  his  books  to  the 
special  committee  the  plaintiff  violated  any  provision  of  the  con- 
stitution or  by-laws.  In  the  by-law  concerning  the  duties  of  officers, 
it  is  provided  that  the  treasurer:  "Shall  deliver  up,  when  legally 
called  upon,  all  moneys,  bonds,  papers,  books,  etc.,  belonging  to  the 
association,  to  the  trustees,  who  shall  have  them  audited  by  a  public 
accountant,  every  four  months,  and  also  previous  to  his  successor  in 
office  receiving  them." 

Special  committees  are  provided  for  by  the  by-laws,  but  their 
powers  and  duties  are  not  prescribed.  It  was  not  shown  what  power 
was  conferred  upon  the  special  committee  in  question.  So  far  as 
the  written  constitution  and  by-laws  show,  it  would  appear  that  the 
treasurer  might  lawfully  retain  in  his  possession  the  books  and  papers 
until  required,  as  above  provided,  to  deliver  them  to  the  trustees 
for  auditing,  or  to  be  turned  over  to  his  successor  in  office.  It  would 
seem,  therefore,  that  the  action  of  the  society  in  suspending  the 
plaintiff  from  his  rights  of  membership  for  failure  to  comply  with 
its  direction  was  not  warranted  by  anything  in  the  written  constitu- 
tion or  by-laws,  which  constitutes  his  contract  with  the  association. 

An  attempt  was  made  by  the  defendant  to  show  a  custom  of  the 
association  by  which  it  had  the  power,  for  the  purpose  of  carrying 
on  its  investigations,  of  demanding  the  property  of  the  association 
which  plaintiff  had  in  his  possession.  This  proof  was  excluded,  and 
the  exceptions  taken  to  the  ruling  of  the  court  constitute  the  prin- 
cipal ground  of  appeal.  It  would  seem  that  a  custom  should  not 
override  the  express  provision  of  the  by-laws  prescribing  when  and 


698  INTERNAL   GOVERNMENT   OF   UNIONS        [CHAP.  XIV 

to  whom  such  property  must  be  surrendered,  and  that  if  the  asso- 
ciation were  accustomed  to  require  the  treasurer  to  do  otherwise 
than  as  prescribed  by  the  by-laws  his  refusal  to  comply  should  not 
subject  him  to  the  same  punishment  as  a  violation  of  the  by-laws 
themselves.  The  custom  of  special  committees  to  require  the  books 
of  the  treasurer  in  pursuance  of  their  investigation,  and  the  custom 
of  the  treasurer  to  comply  with  such  requisition  would  not  tend  to 
show  the  adoption  by  the  association  of  a  new  by-law  on  the  sub- 
ject. While  it  is  true  that  the  existence  of  a  by-law  may  be  established 
by  custom  or  usage  of  a  society,  it  appears  that  this  association  had 
prescribed  the  manner  in  which  its  by-laws  might  be  amended, 
namely,  at  a  regular  meeting,  after  having  been  presented  in  writing 
two  weeks  previously  and  by  a  vote  of  two-thirds  of  the  members. 
It  would  seem  that  where  a  member  is  to  be  subjected  to  the  severe 
punishment  prescribed  for  a  violation  of  the  by-laws  "in  any  aggra- 
vated manner,"  it  is  not  too  much  to  hold  that  the  by-law  should  be 
established  in  the  manner  pointed  out  by  the  instrument  by  which 
the  association  is  governed.  The  appellant  did  not,  on  the  trial, 
offer  to  prove  the  adoption  of  any  new  by-law,  even  by  the  offered 
proof  of  custom.  .  .  . 

The  defendant  attempted  to  show  that  the  plaintiff,  though  de- 
prived of  work  in  New  York,  could  have  obtained  employment  in 
Brooklyn,  and  excepted  to  the  exclusion  of  evidence  to  that  effect, 
and  also  to  the  charge  of  the  trial  judge,  that  plaintiff  was  not  bound 
to  go  outside  of  the  city  of  New  York  for  work.  In  what  respect 
this  was  error  is  not  pointed  out.  Defendant  had  no  right  to  force 
the  plaintiff  to  leave  his  place  of  residence  in  order  to  support  him- 
self. He  had  the  right  to  live  and  work  where  he  chose.  The  judg- 
ment should  be  affirmed. 

McAdam  and  Bischoff,  JJ.,  concur. 

Judgment  affirmed,  with  costs. 


COTTON  JAMMERS  &  LONGSHOREMEN'S  ASSO- 
CIATION NO.  2  V.  TAYLOR 

Court  of  Civil  Appeals  of  Texas.     1900 
23  Texas  Ciy.  App.  367 

Gill,  Associate  Justice.  This  suit  was  brought  by  appellee  for 
damages  alleged  to  have  resulted  to  him  by  reason  of  his  wrongful 
and  malicious  expulsion  from  the  appellant  association. 

A  trial  by  jury  resulted  in  a  verdict  and  judgment  in  appellee's 
favor.    The  case  is  here  on  appeal  by  the  association. 

The  association  is  a  corporation  organized  for  the  purposes  of  secur- 
ing work  for  its  members,  for  maintaining  fair  wages  for  tlieir  labor, 
and  to  supply  certain  tools  for  tlieir  use.  These  tools  are  purchased 
with  funds  derived  from  assessments  upon  the  membership,  and  each 


SECT.  Ill]  DISCIPLINE    OF   MEMBERS  699 

member  is  entitled  to  their  use  and  to  such  other  benefits  as  inured  to 
him  as  a  member  of  the  body  under  certain  prescribed  rules  and 
regulations. 

One  rule  provided  that  any  member  who  should  work  for  a  less 
sum  than  40  cents  per  hour  should  be  subject  to  a  fine  of  $10  and 
suspension  from  the  association  for  one  year,  during  which  time  he 
should  be  deprived  of  the  benefits  of  membership. 

Appellee  was  a  member  of  the  association.  At  a  regular  meeting 
held  July  28,  1897,  he  was  by  resolution  fined  $10  and  suspended 
for  one  year  for  the  alleged  reason  that  he,  with  certain  other  mem- 
bers named  in  the  resolution,  had  worked  for  the  "Lone  Star  Line" 
at  a  less  sum  per  hour  than  the  sum  prescribed  in  the  rule  above 
named.  This  resolution  was  carried  by  the  requisite  vote,  and  the 
suspension  resulting  therefrom  was  enforced  against  appellee.  He 
was  present  when  this  action  was  taken,  but  had  received  no  pre- 
vious notice  of  the  purpose  to  suspend  him,  and  did  nothing  at  the 
time  which  amounted  to  a  waiver  of  such  notice.  On  the  contrary, 
he  protested  against  the  summary  nature  of  the  proceedings,  and 
demanded  the  right  to  be  heard,  but  his  protest  was  ignored. 

As  to  whether,  at  the  time  of  this  action,  there  was  in  existence  any 
rules  prescribing  the  method  of  suspension  or  expulsion,  the  evidence 
is  conflicting.  It  was  shown  that  the  association  had  formerly  been 
incorporated  under  a  different  name,  but  had  forfeited  its  charter  by 
non-payment  of  the  franchise  tax;  that  the  old  concern  had  by-laws 
for  the  government  of  the  body  in  the  suspension  and  expulsion  of 
members,  and  that  such  by-laws  provided  for  notice  and  a  hearing. 
It  was  also  shown  that  a  committee  was  then  out,  engaged  in  the 
task  of  formulating  by-laws  for  the  new  corporation.  It  was  con- 
tended that  the  by-laws  of  the  defunct  corporation  controlled  the 
new  body,  and  there  was  some  evidence  that  it  had  been  acting  there- 
under, though  none  that  they  had  been  formally  adopted. 

It  was  shown  that  the  suspension  of  appellee  was  final,  if  valid,  he 
having  no  right  to  appeal  to  any  other  tribunal  connected  with  the 
order.  His  right  of  action  depends,  therefore,  upon  the  invalidity  of 
the  action  of  the  association  in  suspending  him. 

Appellant  contends  that  the  suspension  was  valid  and  binding  in 
the  absence  of  by-laws  providing  for  notice  and  trial  and  prescribing 
the  mode  of  procedure.  In  support  of  this  contention  appellant 
cites  the  case  of  Manning  v.  San  Antonio  Club,  63  Texas,  166.  In 
that  case  the  club  was  organized  for  literary  purposes,  and  to  pro- 
mote social  intercourse  among  its  members.  All  the  members  were 
required  to  sign  the  constitution  and  by-laws.  No  definite  mode  of 
trial  was  prescribed  by  the  by-laws,  but  one  of  the  articles  provided 
that  any  member  should  forfeit  his  membership  whose  conduct 
should  be  pronounced,  by  a  majority  vote  of  the  directors,  to  have 
endangered  the  welfare,  interest,  or  character  of  the  club.  The 
party  complaining  insisted  that  he  was  entitled  to  notice.    The  court 


700  INTERNAL   GOVERNMENT   OF   UNIONS        [CHAP.  XIV 

held  that  the  by-law  quoted  was  a  part  of  the  contract  of  member- 
ship. That  by  becoming  a  member  he  agreed  to  be  bound  by  that 
method  of  expulsion.    The  relief  asked  was  therefore  denied  him. 

In  discussing  the  case  Justice  Delaney,  who  delivered  the  opinion, 
says:  "When  membership  in  certain  societies  confers  upon  the  in- 
dividual important  benefits  ...  of  peculiar  advantages  in  trade 
or  business,  .  .  .  such  rights  are  protected  by  the  law  of  the  land, 
and  are  generally  secured  in  some  way  by  the  charter."  The  case 
disposed  of  in  that  opinion  was  distinguished  from  the  class  of  cases 
mentioned  in  the  above  quotation.  It  is  conceded  in  that  opinion 
that  cases  involving  valuable  rights,  if  not  protected  by  the  charter, 
come  within  the  protection  of  the  law.  The  case  before  us  is  one 
involving  valuable  rights.  In  such  cases  the  weight  of  authority 
tends  to  support  the  doctrine  that  a  by-law  providing  for  expulsion 
without  notice  or  trial  will  be  held  invalid.  A  by-law  to  be  valid 
must  be  reasonable.  1  Beach  on  Priv.  Corp.,  sees.  309,  318,  320; 
Bacon,  Ben.  Soc,  sees.  82,  85;  Ludowski  v.  Society,  29  Mo.  App., 
337. 

In  this  case,  if  the  association  was  in  fact  acting  under  the  by- 
laws of  the  old  corporation,  the  suspension  was  void  because  their 
provisions  were  ignored.  If  the  old  by-laws  were  not  operative,  then 
no  by-law  existed  providing  rules  of  procedure  in  such  cases,  and 
appellee  was  entitled  to  reasonable  notice  of  the  nature  of  the  charges 
against  him  and  an  opportunity  to  be  heard.  9  Am.  and  Eng.  Enc. 
of  Law,  492.  An  unreasonable  by-law  has  been  held  binding  as  a 
contract  when  assented  to  by  a  member  (Bacon,  Benefit  Societies, 
sec.  87),  and  this  rule  enables  us  more  clearly  to  distinguish  the 
Manning  case,  supra,  from  the  case  under  consideration.  In  the 
absence  of  any  by-law  there  could  be  no  such  assent. 

The  contention  of  appellant  that  the  act  of  expulsion  was  binding 
upon  appellee  is  not  tenable.  He  would  be  entitled  to  a  judgment  for 
such  damages  as  proximately  resulted  from  the  wrong.  Benson  v. 
Screwmen's  Assn.,  2  Texas  Civ.  App.,  66 

Appellant  also  complains  that  the  old  by-laws  should  not  have 
been  admitted  in  evidence,  unless  shown  in  some  way  to  have  been 
adopted  by  appellant.  We  think  this  contention  sound,  and  unless 
the  evidence  is  sufficient  at  least  to  raise  an  issue  as  to  whether  they 
were  so  adopted,  they  should  be  excluded.  If  such  issue  is  raised, 
the  question  of  their  adoption  should  be  submitted  to  tlie  jury. 

It  is  assigned  as  error  that  the  court  failed  to  define  to  the  jury 
what  would  constitute  reasonable  notice  to  appellee.  This  should 
have  been  done,  l)ut  appellant  cannot  be  heard  to  complain  unless  a 
re(}uested  charge  had  been  refused,  containing  a  j^roper  definition. 
No  such  charge  was  requested. 

By  the  eighth  assignment  of  error  appellant  complains  of  the  re- 
fusal of  the  trial  court  to  sustain  a  special  exception  to  the  petition. 
The  exception  is,  that  the  petition  fails  to  disclose  in  what  manner 


SECT.  Ill]  DISCIPLINE    OF   MEMBERS  701 

appellee  was  deprived  of  the  use  of  the  tools,  and  how  and  in  what 
manner  his  suspension  affected  his  right  to  engage  in  remunerative 
labor,  or  prevented  him  from  procuring  work.  The  petition  is  de- 
fective in  the  respects  pointed  out,  and  the  court  erred  in  refusing  to 
sustain  the  exception.  It  is  impossible  to  ascertain  from  the  petition 
what  connection  existed  between  his  membership  in  the  association 
and  his  means  of  obtaining  work,  or  in  what  way  he  was  deprived 
of  an  opportunity  to  secure  employment.  This  court's  knowledge 
of  the  nature  of  the  organization  has  been  gleaned  in  a  general  way 
from  the  facts  adduced  upon  the  trial,  and  not  from  appellee's  peti- 
tion. The  various  questions  presented  have  been  discussed  and  dis- 
posed of  in  view  of  appellee's  right  to  amend  before  another  trial. 
In  this  connection  we  suggest  that  the  nature  and  extent  of  the  dam- 
ages alleged  should  be  more  explicitly  stated. 

The  other  assignments  need  not  be  noticed,  as  the  matters  com- 
plained of,  if  error,  are  not  likely  to  occur  on  another  trial. 

For  the  errors  indicated,  the  judgment  is  reversed  and  the  cause 
remanded.  Reversed  and  remanded.^ 


BURN  V.  NATIONAL  AMALGAMATED  LABOURERS'  UNION 

Chancery  Division.     1920 

[1920]  2  Ch.  364 

Witness  Action. 

The  defendant  Union  was  established  in  1889  for  the  benefit  of 
all  classes  of  labourers  of  either  sex,  and  its  rules  were  registered  under 
the  Trades  Union  Acts,  1871  and  1876.  It  comprised  numerous 
branches,  and  its  material  rules  were  the  following: 

"  Rule  2(1)  For  the  supreme  government  of  the  Union  there  shall  be 
an  Annual  General  Meeting.  In  addition  to  the  President,  General 
Secretary,  and  one  Executive  Committee  Member,  who  shall  be  mem- 
bers thereof  ex-officio,  it  shall  consist  of  not  more  than  sixty  members. 
.  .  .  Each  Branch  shall  elect  its  proportion  of  representatives,  and 
what  number  that  proportion  must  be  shall  be  decided  by  the  Execu- 
tive Committee  hereinafter  mentioned.  .  .  . 

"(3)  The  Annual  General  Meeting  shall  have  power  to  amend, 
rescind  or  make  rules  to  remove  from  office  any  officer  of  the  Union. 
...    It  shall  also  govern  the  Executive  Committee. 

"Rule  3  (1)  For  the  general  management  of  the  Union  there  shall 
be  an  Executive  Committee,  consisting  of  the  President  of  the  Union, 
General  Secretary,  and  eight  representatives  chosen  by  the  Annual 
Meeting.  .  .  . 

"(3)  The  meetings  of  the  Executive  Committee  shall  be  held 
quarterly.  .  .  . 

"  (4)  The  powers  of  the  Executive  Committee  shall  be  limited  to 

'  People  V.  The  Musical  Mutual  Protective  Union,  118  N.  Y.  101  (accord). 


702  INTERNAL   GOVERNMENT   OF   UNIONS        [CHAP.  XIV 

the  management  and  superintendence  of  the  Union.  It  shall  take 
every  means  to  secure  the  observance  of  the  Union's  Rules,  to  perform 
all  duties  allotted  to  it  by  the  said  Rules,  to  further  the  objects  of  the 
Union,  and  to  protect  its  funds  from  misappropriation,  it  shall  direct 
the  action  of  the  trustees,  and  be  responsible  for  the  right  administra- 
tion of  all  the  funds.  It  may  suspend,  expel  and  prosecute  any 
member  obtaining  benefits  by  misrepresentation  or  improperly  re- 
ceiving the  same.  ...    It  shall  have  power  to  determine  questions 

on  which  any  Rule  is  silent It  shall  institute  legal  proceedings 

on  behalf  of  the  members  of  the  Union,  and  direct  the  Trustees  to 
prosecute  any  officer  of  the  Union,  or  member  or  other  person  who 
appropriates,  misapplies  or  withholds  the  funds  of  the  Union.  It 
may  remove  any  incompetent  or  insubordinate  officer.  It  may 
suspend,  expel  and  prosecute  members  acting  contrarj^  to  the  Rules. 
...  In  the  absence  of  the  Executive  Committee  the  General  Secre- 
tar}^  shall  have  full  power  to  take  any  action  for  the  Executive  Com- 
mittee that  these  Rules  allow,  and  report  such  action  to  the  next 
Executive  Committee  Meeting.  .  .  . 

"Rule  8.  Branch  Officers  and  their  Duties  (1)  All  Officers  (except 
Treasurer  and  Secretary)  shall  be  elected  quarterly.  .  .  .  The  Treas- 
urer and  Secretary  shall  hold  office  during  the  pleasure  of  the  Branch. 

"(2)  Should  any  officer,  in  the  opinion  of  the  Branch,  be  incom- 
petent, or  fail  to  perform  his  duty,  or  act  contrary  to  the  interests 
of  the  Union,  he  shall  be  dismissed,  and  the  Branch  shall  elect  another 
in  his  place.  .  .  . 

"  (4)  The  Branch  Secretary  shall  keep  all  books  and  accounts 
belonging  to  his  office.  ,  .  .  He  shall  supply  the  General  Office  with 
a  quarterly  balance  sheet  .  .  .  showing  the  income  and  expenditure 
of  the  Branch. 

"(6)  The  Treasurer  shall  receive  from  the  Secretary  the  money 
received  on  account  of  the  Branch,  and  bank  in  the  name  of  the 
Trustees  and  the  Union  all  money  in  excess  of  the  amount  allowed 
for  the  current  payments  of  the  Branch,  such  sum  not  to  exceed 
51.  .  .  .  He  shall  hold  office  during  the  pleasure  of  the  Branch  and 
his  salary  shall  be  fixed  by  the  Branch.  .  .  . 

"(8)  Each  Branch  shall  have  two  Auditors.  .  .  .  Their  duties 
shall  be  to  audit  each  quarter  all  books,  receipts,  and  documents 
connected  with  the  financial  transactions  of  their  Branch,  and  report 
to  the  Branch  the  manner  in  which  they  found  the  books  and  ac- 
counts. Before  sending  the  report  to  the  General  Office  it  must  be 
signed  by  the  Treasurer  and  Auditors." 

"Rule  16  (3)  All  members  of  this  Union  .  .  .  must  conform  to 
these  Rules." 

The  plaintiff  was  a  member  of  the  defendant  Union,  and  from 
July,  1914,  to  April,  1916,  he  was  Treasurer  of  the  Cardiff  No.  1 
Branch  of  the  Union,  and  then  ceased  to  be  Treasurer.  In  September, 
1910,  he  was  elected  Chairman  of  his  Branch  and  continued  to  hold 


SECT.  Ill]  DISCIPLINE    OF   MEMBERS  703 

that  position  until  the  date  of  the  resolution  hereafter  mentioned. 
As  a  delegate  of  his  Branch  he  attended  the  Annual  General  Meeting 
of  the  Union  in  August,  1917,  and  was  then  elected  one  of  the  two 
General  Auditors  of  the  Union,  and  performed  the  duties  of  that 
office  for  the  year  ending  January  31,  1918. 

In  the  summer  of  1918  the  accounts  of  the  Branch  for  a  period 
prior  to  and  during  the  Treasurership  of  the  plaintiff  were  investi- 
gated, and  it  appeared  from  the  report  of  the  investigators  that  the 
Secretary  of  the  Branch  had  during  that  period  misappropriated 
subscriptions  received  by  him  from  members,  and  for  this  he  was 
prosecuted.  It  also  appeared  that  the  plaintiff  had  no  knowledge 
of  the  defalcations  of  the  Secretary,  but  had  been  negligent  in  his 
duties  whilst  Treasurer.  No  imputation  however  was  made  against 
the  honesty  or  integrity  of  the  plaintiff  nor  did  his  Branch  pass  any 
resolution  against  him  either  as  Treasurer  or  Chairman.  In  October, 
1918,  an  interview  took  place  between  the  plaintiff  and  Mr.  Twomey, 
the  General  Secretary  of  the  Union,  on  the  report  of  the  investigators. 
Mr.  Twomey  pointed  out  to  the  plaintiff  that  during  his  office  as 
Treasurer  there  was  a  deficiency  in  the  Branch  banking  account  of 
41.  17s.,  which  appeared  in  the  Branch  balance  sheet  for  the  March 
quarter  of  1916,  which  he  had  signed  as  Treasurer  and  for  which  he 
was  responsible,  and  also  that  he  had  not  regularly  banked  the 
moneys  he  had  received  from  the  Branch  Secretary,  but  had  retained 
them  in  his  hands  for  an  undue  length  of  time.  The  plaintiff  replied 
that  he  had  banked  all  that  he  received  from  the  Secretary  and  that 
so  far  as  he  was  aware  his  books  were  quite  in  order  when  he  gave 
up  the  office  of  Treasurer;  he  admitted  he  had  not  checked  the  quar- 
terly balance  sheets,  but  had  rehed  on  the  Auditors  and  had  trusted 
the  Secretary,  and  he  asked  for  an  independent  audit  by  a  chartered 
accountant  at  his  own  expense ;  and  with  regard  to  the  undue  reten- 
tion of  moneys  he  alleged  that  other  Treasurers  did  the  same.  Mr. 
Twomey  stated  that  the  Executive  Committee  would  deal  with  the 
matter  at  their  next  meeting,  and  the  plaintiff  asked  to  appear  be- 
fore them  to  explain  his  position. 

The  Executive  Committee  at  their  next  meeting  held  on  November 
11,  1918,  considered  the  investigators'  report,  and  Mr.  Twomey  also 
reported  his  interview  with  the  plaintiff,  and  the  Committee,  dis- 
regarding the  plaintiff's  request  to  appear  before  them  in  his  defence, 
passed  a  resolution  that  the  plaintiff  be  removed  from  any  office  then 
held  by  him  and  not  permitted  to  hold  office  or  perform  any  delega- 
tion on  behalf  of  the  Union  for  a  period  of  five  years  from  that  date. 
This  resolution  was  communicated  to  the  plaintiff  on  November 
30,  1918,  and  he  at  once  wrote  to  Mr.  Twomey  and  protested  against 
the  resolution  and  demanded  an  opportunity  of  appearing  before 
the  Executive  Committee  to  go  into  the  matter.  His  letter  was  read 
at  the  next  meeting  of  the  Executive  Committee  held  on  December 
30,  1918,  and  was  not  complied  with,  and  at  the  next  meeting  of  the 


704  INTERNAL    GOVERNMENT    OF    UNIONS        [CHAP.  XIV 

Executive  Committee  held  on  February  11,  1919,  the  President  de- 
clared that,  in  consequence  of  the  plaintiff  having  been  removed 
from  the  office  of  Senior  Auditor  of  the  Union  by  the  resolution  of 
November  11  last,  the  office  was  vacant,  and  another  member  was 
appointed  to  the  office.  After  some  correspondence  and  county 
court  proceedings  the  plaintiff  on  June  19,  1919,  commenced  this 
action  against  the  Union  claiming  a  declaration  that  the  resolution 
of  November  11,  1918,  was  ultra  vires  as  being  unauthorized  by  the 
constitution  of  the  Union  or  b}^  any  of  its  rules,  and  as  being  contrary 
to  natural  justice  in  that  the  Executive  Committee  had  not  given  the 
plaintiff  an  opportunity  of  stating  his  case  before  them  and  had  not 
acted  in  the  matter  of  the  said  resolution  in  a  judicial  manner;  and 
an  injunction  restraining  the  Union,  the  Executive  Committee,  their 
officers  and  servants  from  acting  upon  or  enforcing  the  said  resolu- 
tion. 

The  Union  by  its  statement  of  defence  referred  to  its  rules,  and 
rehed  in  particular  upon  rule  3  (4) ;  rule  8  (4)  (6)  (8) ;  and  rule  16 
(3);  and  alleged  that  it  was  the  duty  of  the  plaintiff  as  a  member 
of  the  Union  and  as  Treasurer  of  the  Cardiff  Branch  to  conform  to 
the  said  rules,  and  in  particular  as  such  Treasurer  to  bank  all  money 
received  from  the  Secretary  of  the  said  Branch  in  excess  of  the  amount 
allowed  for  current  expenses  as  soon  as  possible  and  not  to  retain 
the  same  in  his  own  hands  for  an  unreasonable  time,  nor  to  sign  the 
quarterly  balance  sheets  before  ascertaining  that  the  statements 
made  therein  were  correct ;  that  the  plaintiff  in  not  conforming  to 
the  said  rules  was  guilty  of  negligence  and  of  a  breach  of  duty  and 
by  reason  of  the  premises  was  incompetent  to  discharge  the  office  of 
Treasurer  of  the  said  Branch  and  for  General  Auditor  of  the  Union; 
that  the  plaintiff  had  a  full  opportunity  of  explaining  his  position 
at  his  said  interview  with  Mr.  Twomey,  which  was  duly  reported  to 
the  Executive  Committee,  and  that  at  the  time  when  the  resolution 
was  passed  the  committee  had  all  the  facts  before  them  and  no 
further  explanation  or  inquiry  would  have  added  thereto;  and  that 
the  committee  after  considering  the  facts  and  the  plaintiff's  said 
explanation  passed  the  resolution  by  virtue  of  its  powers  in  that 
behalf  as  a  disciplinary  measure  for  the  purpose  of  securing  the  ob- 
servance of  the  rules  and  of  protecting  the  funds  of  the  Union.  The 
defence  also  set  up  that  the  action  was  not  maintainable  by  reason 
of  the  provisions  of  the  Trade  Disputes  Act,  190G,  sec.  4  (1). 

The  plaintiff  attended  the  Annual  General  Meeting  of  the  Union 
held  in  August,  1919,  and  spoke  at  length  on  his  position  whilst 
Treasurer  of  his  Branch,  and  a  resolution  was  passed  that  if  he  with- 
drew his  pending  action  against  the  Union  and  paid  all  the  costs  of 
the  Union  he  should  be  reinstated  to  full  miMnbership  of  th(^  Union. 

P.  O.  Lawrence,  J.  On  November  11,  1918,  tlie  l<A(M'utive  Com- 
mittee of  the  defendant  Union  resolved  that  the  plaintiff  should  be 
removed  from  office  and  not  be  permitted  again  to  hold  any  office 


SECT,  III]  DISCIPLINE    OF   MEMBERS  705 

pertaining  to  the  Union  for  a  period  of  five  years  from  that  date. 
The  plaintiff  complains  that  that  resolution  is  one  which  the  Execu- 
tive Committee  had  no  power  to  pass  under  the  rules;  and  furtlu^r 
that,  if  they  had  such  power,  it  was  contrary  to  natural  justice  to 
pass  the  resolution  without  first  hearing  the  plaintiff.  The  cir- 
cumstances under  which  the  resolution  was  passed  are  shortly  these. 
[His  Lordship  stated  the  facts  and  continued:]  The  question  is 
whether  that  resolution  can  be  justified  under  the  rules  and,  if  it 
can,  whether  it  can  be  justified  in  the  circumstances  in  which  it  was 
passed. 

Dealing  with  the  first  part  of  the  question,  I  hold  as  a  fact  that 
the  Executive  Committee  did  not  purport  to  exercise  the  power  of 
removing  an   officer  foe  incompetence   or  insubordination.     They 
had  that  power  but  they  did  not  exercise  it.     At  the  date  of  the 
resolution  the  plaintiff  had  ceased  to  be  the  Treasurer  of  the  Branch, 
and  the  only  offices  which  he  then  held  were  those  of  Chairman  of 
Branch  No.  1  and  of  General  Auditor  of  the  Union.    His  conduct  in 
those  offices  never  came  in  question  and  was  not  considered.    But  it 
is  said  that  the  resolution  can  be  justified  as  coming  under  rule  3  (4), 
because  it  was  passed,  either  under  the  power  therein  contained  to 
take  every  means  to  secure  the  observance  of  the  Union's  rules;   or 
under  the  power  also  therein  contained  to  suspend,  expel  and  pros- 
ecute members  acting   contrary  to  the   rules.     In  my  opinion  the 
power  contained  in  this  rule  to  take  every  means  to  secure  the  ob- 
servance of  the  Union's  rules  does  not  authorize  the  Executive  Com- 
mittee to  remove  a  member  from  office  or  to  prevent  a  member 
from  holding  any  office  or  delegation  pertaining  to  the  Union.    Nor 
does  this  power  in  my  opinion  give  authority  to  punish  or  penalize 
a  member  except  in  the  manner  prescribed  by  the  rule  itself.    Then 
as  regards  the  power   to  suspend,  expel  and    prosecute  members 
acting  contrary  to  the  rules,  I  think  that  that  power,  being  in  its 
nature  penal,  has  to  be  exercised    strictly  in  accordance  with  the 
language  of  the  rule  and  does  not  justify  what  was  attempted  to  be 
done  here.    The  rule  does  not  in  my  opinion  imply  a  power  to  inflict 
penalties  of  a  different  kind  from  those  enumerated,  although  the 
penalties  in  fact  inflicted  may  be  less  severe  than  those  specified  in 
the  rules.    It  is  however  further  argued  that  the  resolution  is  in  fact 
a  resolution  for  the  suspension  of  the  plaintiff,  although  it  operates 
as  a  suspension  of  part  only  of  his  rights  and  privileges.    In  ni}'  view 
that  argument  is  not  sound,  and  I  do  not  think  that  the  rule,  by 
conferring  upon  the  Committee  a  power  to  suspend  a  member  from 
membership,  authorizes  the  Committee  to  prohibit  a  member  without 
suspending  him  from  membership  from  enjoying  some  of  the  rights 
and  privileges  of  membership.    The  rule  does  not  in  express  language 
permit  of  that  to  be  done,  and  I  hold  that  such  a  power  ought  not 
to  be  implied. 


706  INTERNAL   GOVERNMENT   OF   UNIONS        [CHAP.  XIV 

But  assuming  that  I  am  wrong  in  the  construction  which  I  have 
placed  upon  rule  3,  and  that  the  penalty  purported  to  be  inflicted 
upon  the  plaintiff  is  one  which  the  Executive  Committee  had  power 
to  impose,  the  question  arises  whether,  before  inflicting  it,  they 
ought  not  on  the  principle  of  natural  justice  to  have  given  the  plain- 
tiff an  opportunity  of  being  heard  in  his  own  defence.  That  in  turn 
depends  upon  whether  the  power  is  one  of  a  quasi- judicial  nature, 
or  is,  as  has  been  contended,  a  mere  disciplinary  administrative 
power.  I  have  no  hesitation  in  holding  that  the  power  to  suspend 
or  expel  a  member  for  acting  contrary  to  the  rules  is  one  of  a  quasi- 
judicial  nature.  It  involves  an  inquiry,  because  it  only  arises  if  the 
member  has  acted  contrary  to  the  rules.  The  first  obligation  on  the 
Executive  Committee  before  attempting  to  exercise  that  power  is  to 
satisfy  themselves  that  the  member  has  acted  contrary  to  the  rules, 
and  in  common  fairness  a  man  who  is  charged  with  a  breach  of  the 
rules  of  the  Union  to  which  he  belongs  ought  to  be  heard  so  as  to 
enable  him  not  only  to  rebut  the  charge  if  it  can  be  rebutted,  but 
also  if  it  cannot  be  rebutted  to  explain  the  circumstances  under  which 
the  breach  was  committed  so  as  to  enable  the  Committee  to  decide 
what,  if  any,  penalty  should  be  inflicted.  I  cannot  conceive  any- 
thing more  contrary  to  our  notions  of  justice  than  to  decide  against 
a  member  that  he  has  committed  a  breach  of  the  rules  and  to  penalize 
that  member  for  such  breach  without  giving  him  a  chance  of  being 
heard  in  his  own  defence.  I  have  no  doubt  that  the  Committee  in 
the  present  case  acted  in  perfect  good  faith.  Not  being  used  to  exer- 
cising quasi-judicial  powers  however  they  thought  that  the  case 
was  too  clear  for  argument  and  that  the  plaintiff  could  not  have 
anything  to  say  for  himself.  A  greater  fallacy  than  that  I  cannot 
imagine.  Judging  merely  by  what  happened  afterwards  I  think 
that  there  was  at  least  a  reasonable  probability  that  no  such  penalty 
would  have  been  inflicted  on  the  plaintiff  if  he  had  been  heard  and 
had  explained  his  position.  I  do  not  mean  to  suggest  that  the  omis- 
sion of  the  plaintiff  to  satisfy  himself  as  to  the  exact  amount  of  the 
bank  balances  before  signing  the  quarterly  reports  was  not  in  the 
highest  degree  blameworthy  nor  that  the  Committee  would  have  been 
wrong  if  after  hearing  the  plaintifi"  they  had  rejected  his  excuses  for 
not  checking  the  bank  balances  and  for  not  having  paid  the  moneys 
which  he  had  from  time  to  time  received  from  the  secretary  promptly 
into  the  bank  instead  of  having  held  them  in  his  own  hands  for 
lengthy  periods,  but  in  my  judgment  the  Connnittee  were  entirely 
wrong  in  coming  to  the  conclusion  that  they  ought  to  judge  and  pass 
sentence  on  the  plaintiff  without  hearing  him,  and  without  giving 
him  an  opportunity  to  give  such  explanation  as  he  desired  to  give 
in  order  to  enable  them  to  consider  whether  they  should  inflict  any 
and  what  punishment  on  him.  It  is  admitted  that  the  penalty  which 
has  been  inflicted  on  the  jjhiintifT  is  a  very  severe  one,  and  in  my 
opinion  the  Committee  acted  contrary  to  natural  justice  in  inflicting 


SECT.  Ill]  DISCIPLINE    OF   MEMBERS  707 

it  without  giving  the  plaintiff  a  chance  of  being  heard.  The  result 
is  that  I  have  come  to  the  conclusion  that  the  resolution  of  Novem- 
ber 11  was  one  which  was  not  warranted  under  rule  3  (4);  and 
further,  even  if  it  were  so  warranted,  that  it  was  one  which  cannot 
be  supported  because  the  plaintiff  was  not  given  an  opportunity  of 
being  heard  before  it  was  passed. 

But  it  is  argued  by  Mr.  Morris  that  even  then  I  ought  not  to 
grant  the  relief  asked  for,  because  at  the  Annual  General  Meeting 
held  in  August,  1919,  after  the  action  had  been  commenced,  the 
plaintiff,  who  had  been  invited  to  attend,  gave  his  explanation  at 
length,  and  after  he  had  given  his  explanation  the  meeting  ultimately 
resolved  to  confirm  the  decision  arrived  at  by  the  Executive  Com- 
mittee. In  my  view  that  proceeding  in  August,  1919,  does  not  in 
any  way  debar  the  plaintiff  from  obtaining  the  relief  claimed  by 
him  in  this  action.  After  the  plaintiff  had  given  his  explanation,  the 
meeting  by  an  overwhelming  majority  considered  that  the  plaintiff 
was  a  fit  and  proper  person  to  be  admitted  a  full  and  free  member 
with  the  right  to  hold  office  in"  the  Union,  but  they  made  it  a  con- 
dition of  passing  a  resolution  to  that  effect  that  the  plaintiff  should 
pay  certain  costs  amounting  to  about  251.,  and  that  if  he  did  not 
pay  that  sum  the  decision  of  the  Executive  Committee  should  be 
affirmed.  The  plaintiff  did  not  pay  the  costs,  and  Mr.  Morris  con- 
tends that  the  result  of  this  non-payment  is  that  the  Annual  General 
Meeting  has  passed  a  resolution  confirming  the  decision  of  the  Com- 
mittee after  having  heard  the  plaintiff.  I  think  such  a  resolution 
as  that  come  to  by  the  Annual  General  Meeting  stands  self-condemned 
as  soon  as  it  is  stated.  The  punishment  meted  out  to  the  plaintiff 
was  one  which  could  only  be  properly  inflicted  upon  him  if  he  were 
proved  by  his  past  conduct  to  be  an  unfit  and  improper  person  to 
hold  office  in  the  Union.  To  say  that  the  plaintiff  is  a  fit  and  proper 
person  to  hold  office,  but  if  he  fails  to  pay  251.  towards  the  funds  of 
the  Union  the  meeting  will  resolve  to  affirm  the  Committee's  decision 
that  he  is  an  unfit  and  improper  person  to  hold  office,  appears  to 
me  to  be  an  abuse  of  the  power  of  suspension  or  expulsion  contained 
in  the  rules,  and  moreover  is  an  attempt  to  impose  a  pecuniary 
penalty  upon  the  plaintiff  which  is  wholly  unauthorized.  For  these 
reasons  I  have  come  to  the  conclusion  that  the  resolution  passed  by 
the  Annual  General  Meeting  after  the  date  of  the  commencement  of 
this  action  does  not  in  any  way  affect  the  relief  to  which  I  hold  the 
plaintiff  to  be  entitled.  I  propose  therefore  to  make  a  declaration 
that  the  resolution  of  November  11,  1918,  was  not  authorized  by  the 
rules,  and  further  that  it  is  one  which,  even  if  authorized  by  the  rules, 
was  passed  contrary  to  natural  justice,  inasmuch  as  the  plaintiff 
was  not  given  an  opportunity  to  defend  himself;  and  I  grant  the 
injunction  asked  for.' 

1  Harris  v.  Aiken,  76  Kan.  516  (accord).  The  prevailing  doctrine  is  that  if  the 
court  has  jurisdiction,  it  will  interfere  on  the  plaintiff's  behalf  if  the  plaintiff  has 


708  INTERNAL   GOVERNMENT   OF   UNIONS        [CHAP.  XIV 


Section  4.    Expulsion  of  Members 

OTTO  V.  JOURNEYMEN  TAILORS'  PROTECTIVE  & 
BENEVOLENT  UNION 

Supreme  Court  of  California.     1888 
75  Cal.  308 

Searls,  C.  J.  This  is  an  appeal  from  a  writ  of  mandate  issued 
by  the  Superior  Court,  commanding  appellant  to  reinstate  the  re- 
spondent, August  Otto,  to  membership  in  the  society,  and  to  restore 
him  to  all  the  rights,  privileges,  and  immunities  of  membership 
therein. 

The  appellant  is,  and  since  1873  has  been,  an  unincorporated 
association  composed  of  about  two  hundred  persons,  tailors  by  oc- 
cupation, organized  for  the  purpose  of  transacting  the  business  of  a 
benevolent  association,  of  improving  the  condition  of  its  members, 
and  for  protection  against  unjust  and  arbitrary  encroachment  of 
capital. 

The  association  has  a  constitution  and  by-laws,  providing  for  its 
government,  and  has  a  benevolent  fund  to  which  members  may, 
under  proper  circumstances,  become  entitled  to  a  certain  extent. 

Plaintiff  became  a  member  about  October  1,  1883,  and  continued 
such  in  good  standing  until  June  9,  1884,  when,  as  the  court  finds, 
he  was  expelled  without  any  hearing  or  trial  whatever. 

On  May  24,  1884,  plaintiff  was  a  regular  member  in  good  stand- 
ing of  the  association,  and  of  the  benevolent  fund  branch  of  the 
association,  and  entitled  to  its  pecuniary  benefits,  when  a  question 
arose  in  reference  to  the  employment  of  non-members  of  the  associa- 
tion by  a  firm  of  tailors,  and  such  proceedings  were  had  that  a  special 
meeting  of  all  members  of  shop  meetings  was  called,  at  which  it  was 
decided,  by  a  vote  of  eighty-nine  for  and  thirty-nine  against,  to 
declare  a  strike  against  the  offending  firm,  for  which  plaintiff  was 
laboring. 

been  expelled  without  notice  or  a  chance  to  be  heard.  The  courts  have  diflfered 
as  to  what  is  the  proper  basis  for  granting  rehef  in  these  cases,  some  putting  it 
upon  the  basis  of  a  contract  expressed  or  implied  in  the  agreement  of  association 
or  b}'-laws  (see,  for  instance,  Manning  v.  San  Antonio  Club,  03  Tex.  106;  Levy 
V.  Magnolia  Lodge  No.  129,  110  Cal.  297),  and  other  courts  putting  it  upon  the 
basis  of  natural  justice  or  "fair  play"  (see,  in  addition  to  the  principal  case, 
Parr  JA  Lancashire  &  Cheshire  Miners'  Fed.,  [1913],  1  Cli.  30();  Williamson  r.  Ran- 
dolph, 48  Mi.sc.  (N.  Y.)  96).  Many  cases  have  comluned  the  two  (Universal 
Lodge  No.  14  i>.  Valentine,  134  Md.  SOf),  517;  Richards  v.  Morison,  229  Mass. 
458,  460-461).  Which  of  these  two  theories  is  the  correct  one  is  tested  by  the 
case  where  the  by-law  specifically  makes  notice  imnecessary.  In  Ludowiski  v. 
Ben(!Volent  Society,  29  Mo.  App.  337,  339,  it  was  stated  that  a  by-law  providing 
for  the  suspension  of  a  member  without  notice  and  without  trial  would  be  invalid. 


SECT.  IV]  EXPULSION    OF    MEMBERS  709 

By  the  constitution  and  by-laws  it  is  provided  that  a  two-thirds 
majority  of  the  members  shall  be  necessary  [for]  ordering  a  strike. 
There  were  at  the  time  176  members  entitled  to  vote  on  the  question, 
of  whom  two-thirds  did  not  vote,  but  two-thirds  of  those  present  at 
the  meeting  did  vote  in  favor  of  the  strike.  Plaintiff  opposed  such 
strike.  He  at  first  expressed  a  determination  to  abide  by  the  de- 
cision, but  finally,  upon  being  offered  work  by  the  offending  firm, 
accepted  such  work,  and  was  therefor  expelled  from  the  associa- 
tion, as  hereinbefore  stated,  and  all  union  members  were  informed 
thereof,  whereby  he  has  since  that  date,  under  the  rules  of  the  asso- 
ciation, been  prevented  from  procuring  employment  in  union  shops, 
which  seemed  to  include  most  of  the  better  class  of  shops  in  the  city 
(San  Francisco). 

The  expulsion  was  invahd  in  this:  members  working  for  parties 
against  whom  a  strike  is  declared  are  subject  to  fine  of  not  less  than 
ten  dollars  nor  more  than  one  hundred  dollars ,  and  no  other  or  further 
penalty  is  provided,  so  far  as  appears  by  the  constitution  and  by- 
laws. 

On  the  17th  of  July,  1884,  the  striking  members  of  the  union  agreed 
to  terminate  the  strike,  and  to  return  to  work  for  the  employers  of 
the  plaintiff,  on  the  condition  that  they  would  discharge  the  latter, 
which  was  done,  and  the  strike  thus  terminated. 

On  the  13th  of  October,  1884,  the  central  body  of  the  union  re- 
scinded the  expulsion  of  plaintiff,  and  on  the  same  day  of  the  same 
month  other  charges  involving  conspiracy  on  the  part  of  plaintiff, 
and  others,  against  and  to  the  injury  of  the  society  and  its  members, 
were  preferred.  The  twenty-seventh  day  of  October  was  set  for  the 
trial  of  plaintiff  upon  the  charges,  which  trial  subsequently  took 
place,  and  plaintiff  was  found  guilty  of  conspiracy,  and  expelled  from 
the  society. 

The  court  below  finds,  as  bearing  upon  this  point,  in  substance: 
1.  That  the  expulsion  of  June  9th  was  for  working  for  a  firm  against 
whom  a  strike  had  been  ordered;  2.  That  the  rescission  of  October 
13th  was  not  made  in  good  faith,  and  was  only  for  the  purpose  of 
expelling  him  again;  3.  That  the  first  and  second  expulsions  were 
for  one  and  the  same  offense,  and  was  not  called  conspiracy,  until 
the  charges  were  drawn  by  an  attorney,  and  then  only  that  a  charge 
might  be  formulated  which  would  warrant  expulsion,  independent 
of  the  constitution  and  by-laws;  4.  That  the  trial  of  October  27th 
was  by  the  central  body,  and  not  by  the  union  as  a  whole;  that  this 
was  not  fair,  was  contrary  to  natural  justice,  not  provided  for  by 
the  constitution  or  by-laws,  etc. 

The  findings  fully  sustain  the  allegations  of  the  petition,  and 
warrant  the  judgment  of  the  court,  provided  it  is  within  the  province 
of  that  tribunal  to  investigate  and  question  the  action  of  the  appellant 
in  expelling  plaintiff. 


710  INTERNAL   GOVERNMENT   OF   UNIONS        [CHAP.  XIV 

Appellant  specifies  many  particulars  in  which  it  is  claimed  the 
decision  of  the  court  is  not  supported  by  the  evidence. 

We  have  examined  the  testimony,  and  are  of  opinion  that  it  war- 
rants the  findings  of  the  court  in  all  essential  particulars. 

To  enumerate  the  several  objections,  and  specify  the  evidence 
in  support  of  the  findings  excepted  to,  would  extend  the  decision 
bej^ond  reasonable  limits,  without  any  corresponding  benefits  to  the 
parties;  hence  we  dismiss  this  branch  of  it  thus  summarily. 

Courts  will  interfere  for  the  purpose  of  protecting  property  rights 
of  members  of  unincorporated  associations  in  all  proper  cases,  and 
when  they  take  jurisdiction,  will  follow  and  enforce,  so  far  as  ap- 
plicable, the  rules  applying  to  incorporated  bodies  of  the  same  char- 
acter. 

Respondent,  as  a  member  of  the  association  in  good  standing, 
who  had  paid  all  of  his  dues  and  assessments,  and  who  was  entitled 
to  participate  in  the  benefit  feature  of  the  company,  had  property 
rights  involved,  which,  if  violated,  entitle  him  to  the  protection  of 
the  courts. 

The  right  of  expulsion  from  associations  of  this  character  may 
be  based  and  upheld  upon  two  grounds:  1.  A  violation  of  such  of 
the  established  rules  of  the  association  as  have  been  subscribed  or 
assented  to  by  the  members,  and  as  provide  expulsion  for  such  viola- 
tion; 2.  For  such  conduct  as  clearly  violates  the  fundamental  ob- 
jects of  the  association',  and  if  persisted  in  and  allowed  would  thwart 
those  objects  or  bring  the  association  into  disrepute. 

We  content  ourselves  with  stating  the  propositions  thus  broadly, 
and  for  the  purposes  of  this  case  need  not  refer  to  the  numerous 
authorities  defining  and  limiting  the  power. 

In  the  matter  of  expulsion,  the  society  acts  in  a  quasi  judicial 
character,  and  so  far  as  it  confines  itself  to  the  exercise  of  the  powers 
vested  in  it,  and  in  good  faith  pursues  the  methods  prescribed  by  its 
laws,  such  laws  not  being  in  violation  of  the  laws  of  the  land  or  any 
inalienable  right  of  the  member,  its  sentence  is  conclusive,  like  that 
of  a  judicial  tribunal.  (Commonwealth  v.  Pike  Benevolent  Society, 
8  Watts  &  S.  250;  Burt  v.  Crand  Lodge  F.  &  A.  M.,  44  Mich.  208; 
Robinson  v.  Yates  City  Lodge,  86  111.  598.) 

The  courts  will,  however,  decide  whether  the  ground  for  expulsion 
is  well  taken.  (Hirschl  on  Law  of  Fraternities,  55;  Savannah  Cotton 
Ex.  V.  State,  54  Ga.  (368.) 

It  has  been  held,  in  reference  to  the  expulsion  of  members  from 
societies  of  this  character,  that  the  courts  have  no  right  to  interfere 
with  the  decisions  of  the  societies  except  in  the  following  cases: 
"1.  If  the  decision  arrived  at  was  contrary  to  natural  justice,  such 
as  the  member  complained  of,  not  having  an  opportunity  to  explain 
misconduct;  2.  If  the  rules  of  the  clul)  have  not  been  ol)served; 
3.    If   the  action  of   the  club  was  malicious,  and  not  bona  fide.'' 


SECT.  IV]  EXPULSION   OF   MEMBERS  711 

(Hirschl  on  Law  of  Fraternities,  56;  Dawkins  v.  Antrobus,  44  L.  T. 
Rep.  557;  Lambert  v.  Addison,  46  L.  T.  Rep.  20.) 

Article  25  of  appellant's  constitution  provides  as  follows:  "If  any 
member  defrauds  this  union,  he  shall  be  dealt  with  as  the  central 
body  may  decide." 

Beyond  this  no  specific  provision  appears  in  the  constitution  or 
by-laws  under  which  members  may  be  expelled. 

The  contention  of  appellant  is,  that  the  power  of  expulsion  is  in- 
herent in  every  society,  and  that  the  offense  of  which  plaintiff  was 
found  guilty  was  sufficient  ground  for  expulsion,  as  matter  of  law, 
irrespective  of  any  provision  of  the  constitution  or  by-laws. 

We  subscribe  to  that  portion  of  the  proposition  which  asserts  the 
inherent  right  of  expulsion,  subject,  however,  to  the  limitations 
hereinbefore  expressed. 

For  the  purposes  of  this  case,  we  assume,  also,  without  deciding: 
1 .  That  the  charges  and  specifications  against  plaintiff  were  sufficient, 
upon  being  proven,  to  warrant  his  expulsion  under  the  inherent 
right  so  to  do  mentioned;  2.  That  the  central  body,  —  that  is  to 
say,  the  board  of  delegates  of  shop  societies,  —  as  contradistin- 
guished from  the  entire  body  of  members,  may  exercise  the  power  of 
expulsion. 

Conceding  these  propositions,  however  (so  far  as  the  latter  is 
concerned,  we  doubt  if  it  can  be  maintained),  and  the  facts  as  found 
by  the  court  still  remain,  that  plaintiff  was  really  and  in  fact  found 
guilty  for  no  other  offense  than  that  for  which  he  was  expelled  in  the 
first  instance,  viz.,  for  working  for  parties  against  whom  a  strike 
had  been  ordered;  that  the  expulsion  was  not  in  good  faith,  was  not 
fair,  and  was  contrary  to  natural  justice;  that  the  charge  of  "con- 
spiracy to  injure  and  destroy  the  union"  was  in  substance  but  a  pre- 
text to  punish  him  for  an  offense  only  subjecting  him  to  a  fine,  in  a 
manner  wholly  different  from  the  imposition  of  the  penalty  provided 
therefor,  etc. 

We  think,  as  before  stated,  that  there  was  evidence  from  which 
the  facts  as  found  were  fairly  deducible. 

These  facts  raise  the  inevitable  conclusion  that  the  trial  and  con- 
viction of  plaintiff  was  a  travesty  upon  justice,  and  lacking  in  the 
essential  elements  of  fairness,  good  faith,  and  candor,  which  should 
characterize  the  action  of  men  in  passing  upon  the  rights  of  their 
fellowmen. 

We  are  referred  to  the  provision  of  appellant's  constitution,  which 
provides  that  "any  member  having  a  grievance  shall  have  the  right 
to  lay  his  case  before  the  central  body,  who  shall  take  action  thereon, 
and  whose  decision  shall  be  final." 

No  doubt  when  action  is  properly  taken  in  the  manner  indicated, 
it  is  final,  and  the  courts  will  not  interfere;  but  when  under  the  guise 
of  remedying  the  grievance  of  a  member,  the  central  body  acts  in 


712  INTERNAL   GOVERNMENT   OF   UNIONS        [CHAP.  XIV 

bad  faith,  and  maliciously  makes  the  subject  of  the  grievance  a  pre- 
text for  oppression  and  wrong,  its  action  may,  however,  to  that 
extent,  be  the  subject  of  review. 

The  judgment  is  affirmed. 

Paterson,  J.,  and  McKinstry,  J.,  concurred.^ 


(3RAND  GROVE  v.  GARIBALDI  GROVE 

Supreme  Court  of  California.     1900 

130  Cal  116 

Smith,  C.  Appeal  from  judgment  for  plaintiff  against  defendant 
Duchein,  and  from  order  denying  motion  for  new  trial. 

The  plaintiff  is  a  corporation  organized  under  the  laws  of  this 
state.  The  defendant,  the  Garibaldi  Grove,  was,  on  and  before 
June  22,  1893,  a  subordinate  unincorporated  association,  organized 
under  charter  from  the  plaintiff;  but  on  that  date,  by  a  vote  of  the 
Grand  Grove,  at  the  annual  session  held  in  San  Francisco  for  the 
year  1893,  a  resolution  was  passed  whereby  the  Garibaldi  Grove  was 
declared  "dissolved,  and  .  .  .  the  charter  and  all  property  of  said 
Garibaldi  Grove  .  .  .  forfeited  to  the  Grand  Grove,"  etc.  At  that 
date  the  defendant  Duchein  was  the  treasurer  of  the  Garibaldi 
Grove,  and  as  such  had  in  his  custody  the  sum  of  nine  hundred  and 
fifty-four  dollars  and  fifteen  cents,  the  property  of  the  grove;  and 
the  suit  was  brought  May  21,  1895,  to  recover  judgment  against 
hi  ;i  for  this  money. 

No  relief  was  demanded  or  given  against  the  defendant  associa- 
tion.   Nor  is  it  explained  why  it  was  desirable  or  how  it  was  possible 

1  See  Pound,  Equitable  Relief  against  Defamation  and  Injuries  to  Personality. 
29  H.  L.  R.  640,  677-681. 

The  generally  accepted  rule  is  that  equity  will  give  no  relief  against  expulsion 
where  no  property  interests  are  involved.  "I  have  no  doubt  whatever  that  the 
foundation  of  the  jurisdiction  is  the  right  of  propert}^  vested  in  the  member  of 
the  society,  and  of  which  he  is  unjustly  deprived  by  such  unlawful  expulsion. 
There  is  no  such  jurisdiction  that  I  am  aware  of  reposed,  in  this  country  at  least, 
in  any  of  the  Queen's  Courts  to  decide  upon  the  rights  of  persons  to  associate 
together  when  the  association  possesses  no  property."  Jessel,  M.  R.,  in  Rigby  v. 
Connol,  14  Ch.  Div.  482,  487. 

It  may  well  be  doubted,  however,  whether  this  doctrine,  for  th(>  purpose  of 
achieving  justice,  is  a  sound  one.  Should  not  courts  of  equity  protect  interests 
of  personality  as  well  as  interests  of  property,  the  former  of  which  may  be  far 
more  valuat)lc  than  the  latter?  Some  American  courts  have  achieved  this  desir- 
able result  tbrough  the  method  of  resorting  to  a  theory  of  contract.  See  Krause 
V.  Sander,  (50  Misc.  001;   Lawson  v.  Hewell,  US  Cal.  tUU. 

For  an  example  of  a  decision  following  the  more  modern  view  and  holding  that 
a  court  of  equity  has  jurisdiction  to  protect  interests  of  personality  as  well  as 
property  interests,  see  Stark  v.  Hamilton,  14!)  (ia.  227. 

Ah  to  the  right  of  jutlicial  interference  to  i)revent  suspension  or  (expulsion,  com- 
pare also,  Weiss  V.  Musical  Mutual  Protective  Union,  189  Pa.  St.  440;  Froolich  y. 
Musicians'  Mutual  Benefit  Assn.,  93  Mo.  App.  ',iH3. 


SECT.  IV]  EXPULSION   OF   MEMBERS  713 

to  make  an  association,  which,  according  to  the  allepjations  of  the 
complaint,  had  been  dissolved,  a  party  to  the  suit.  Yet  this  defunct 
association  is  not  only  made  a  party,  but  appears  as  though  living, 
and  files  an  answer  in  the  lower  court  praying  for  judgment  in  favor 
of  the  plaintiff  —  thus  presenting  the  case  of  a  deceased  party  com- 
ing into  court  to  participate  in  a  contest  as  to  the  disposition  of  its 
estate,  and  at  the  same  time  asking  an  adjudication  of  its  own  de- 
cease. The  error,  however,  though  grotesque,  is  immaterial,  and  is 
referred  to  simply  for  the  purpose  of  clearing  the  case  of  an  unneces- 
sary complication.  The  suit  is  merely  a  suit  against  the  defendants 
Duchein  and  Knarston,  who  are  to  be  regarded  as  the  only  defend- 
ants. 

The  sole  question  in  the  case  is  as  to  the  validity  of  the  resolution 
of  the  Grand  Grove  declaring  a  dissolution  of  the  Garibaldi  Grove 
and  a  forfeiture  of  its  property  to  itself.  If  that  was  valid  the  plain- 
tiff was  entitled  to  recover  from  Duchein  the  amount  held  by  him 
as  treasurer  at  the  time  of  the  dissolution;  otherwise  not. 

It  is  indeed  claimed  by  Duchein  that  between  the  date  of  the 
alleged  dissolution  and  March  23,  1895,  he  paid  out  as  treasurer, 
and  under  the  direction  of  the  Garibaldi  Grove  (for  lawyers'  fees 
and  cost  in  previous  suit  —  reported  in  Grand  Grove,  etc.  v.  Gari- 
baldi Grove,  etc.,  105  Cal.  219),  the  sum  of  seven  hundred  and 
eighty-one  dollars,  and  on  that  date  turned  the  balance  over  to  his 
successor;  and  it  is  submitted  by  his  counsel  "that  Mr.  Duchein 
ought  not  to  be  compelled  to  pay  these  amounts  twice."  But  if  the 
dissolution  of  the  grove  and  the  forfeiture  of  its  property  to  the 
Grand  Grove  be  valid,  such  must  be  the  result. 

The  principles  of  law  governing  the  decision  of  the  question  in- 
volved may  be  thus  summarized:  "There  is  no  distinction  in  prin- 
ciple between  expelling  a  member  from  a  subordinate  grove  and 
revoking  the  charter  of  the  grove  itself."  (Grand  Grove,  etc.  v. 
Garibaldi  Grove,  etc.,  supra.) 

Associations  of  this  character  are  not  bodies  politic  or  corpora- 
tions ;  nor  are  they  recognized  by  the  law  as  persons.  They  are  mere 
aggregates  of  individuals  called  for  convenience,  like  partnerships, 
by  a  common  name.  Such  associations  cannot,  therefore,  acquire  or 
hold  property,  though  often  said  to  do  so.  All  the  property  said  to 
belong  to  it  is  in  fact  the  property  of  its  members  and  each  man's 
share  of  it  is  his  own  private  property  and  equally  protected  by  the 
fundamental  laws.  (1  Bacon  on  Benefit  Societies,  sec.  27.)  For  the 
same  reason  such  associations  cannot  sue  or  be  sued.  In  suits  where 
they  are  apparently  parties,  the  real  parties  are  the  members  of  the 
association,  who  —  as  in  the  case  of  partnerships  —  are  sued  by  the 
company  name. 

Associations  of  this  kind  are  not  vested  with  the  right  of  expul- 
sion by  the  general  law  of  the  land,  but  by  the  agreement  of  the 
members  as  expressed  in  the  charter,  constitution,  and  by-laws  of 


714  INTERNAL   GOVERNMENT   OF  UNIONS        [CHAP.  XIV 

the  association.  To  these  and  to  legislation  subsequently  to  be 
enacted,  every  member  assents  in  joining  the  association.  (1  Bacon 
on  Benefit  Societies,  sees.  64,  81.)  There  thus  arises  a  special  law 
resting  on  the  agreement  of  the  members  and  binding  on  them;  and 
in  this,  and  not  in  the  general  law,  is  to  be  found  the  source  of  the 
power  of  expulsion.  Hence  it  is  said:  "The  rights  of  the  members 
of  these  associations  rest  in  contract,  and  .  .  .  can  only  be  divested 
in  the  manner  provided  in  the  contract."  (1  Bacon  on  Benefit  Soci- 
eties, sec.  104.) 

It  follows  —  unless  in  the  case  of  conduct  subversive  of  the  funda- 
mental objects  of  the  association,  with  which  in  this  case  we  have  no 
concern  —  that  no  member  can  be  expelled,  and  thus  deprived  of 
his  share  of  the  property  of  the  association,  unless  for  violation  of 
some  explicit  provision  of  the  law  of  the  association  creating  the 
offense  with  which  he  is  charged,  and  prescribing  expulsion  as  the 
penalty.  (Otto  v.  Journeymen  Tailors',  etc.,  Union,  75  Cal.  314.) 
To  justify  expulsion  there  must,  therefore,  be  a  written  charge,  in 
the  nature  of  an  indictment  or  information  referring,  either  expressly 
or  by  implication,  to  the  particular  provision  of  the  law  violated  and 
describing  some  specific  act  or  acts  as  constituting  the  offense.  (Grand 
Grove,  etc.  v.  Garibaldi  Grove,  etc.,  supra;  1  Bacon  on  Benefit 
Societies,  sec.  103;  Hirschl's  Law  of  Fraternities,  sec.  13,  p.  13.) 

The  party  accused  must  also  have  due  notice  of  the  trial  of  the 
charge,  and  an  opportunity  of  being  heard  in  his  defense  (Grand 
Grove,  etc.  v.  Garibaldi  Grove,  etc.,  supra);  and  "if  no  other  method 
of  notice  is  prescribed  by  the  by-laws,  it  must  be  served  personally" 
(1  Bacon  on  Benefit  Societies,  sec.  101)  —  i.  e.,  where  the  proceeding 
is  against  the  association  —  on  the  members,  for  they  alone  are  the 
parties  to  the  suit.  They  may,  however,  where  the  constitution  or 
by-laws  of  the  association  so  provide,  be  served  vicariously  by  service 
on  certain  officers  or  other  agents  designated  by  them  for  the  pur- 
pose. But  service  of  this  kind  is  good  only  by  virtue  of  the  agree- 
ment of  the  members  as  thus  expressed,  and  would  otherwise  be 
void. 

The  above  rules  apply  not  only  to  the  action  of  a  subordinate 
association  in  expelling  a  member,  but,  a  fortiori,  to  a  superior 
association  that  assumes  to  exercise  the  power  of  expulsion  over 
the  subordinate  association  or  its  members.  (1  Bacon  on  Benefit 
Societies,  sees.  104,  116,  subd.  4.)  In  either  case,  in  a  proceeding 
for  expulsion,  the  society  exercising  the  power  acts  in  a  quasi  judicial 
character  and  must  confine  itself  to  the  powers  vested  in  it  (Otto  v. 
Journeymen  Tailors',  etc..  Union,  supra);  and,  as  in  all  cases  of  in- 
ferior tiihunals,  its  jurisdiction  must  affirmatively  appear. 

Api)lying  these  principles  to  the  present  case,  it  is  manifest  that 
the  proceedings  against  the  Garibaldi  Grove  were  without  jurisdic- 
tion, either  of  the  subject  matter,  or  of  the  parties,  and  were  there- 
fore wholly  void. 


SECT.  IV]  EXPULSION    OF    MEMBERS  715 

1.  The  claim  of  jurisdiction  over  the  person  of  the  accused  associa- 
tion, or  rather  over  the  persons  of  its  members,  must  rest  on  the 
written  acknowledgment  of  service  of  the  citation,  appearing  in  the 
record,  signed  "C.  Clivio,  Last  Noble  Arch,"  "  J.  Moresi,  Last  Secre- 
tary." The  terms  of  these  gentlemen  had  expired  some  (Mght  months 
prior  to  the  date  of  the  alleged  service ;  and  even  before  the  expiration 
of  their  terms  they  had  ceased  to  attend  the  meetings  of  the  grove 
and  had  avowedly  withdrawn  from  exercising  their  official  functions 
—  the  signing  of  the  acknowledgment  being,  in  fact,  their  first  official 
act  subsequent  to  their  abdication  of  their  offices.  In  the  meanwhile, 
other  officers  had  been  elected  by  those  members  of  the  grove  who 
continued  to  hold  meetings;  and  these  officers,  at  the  time  of  the 
alleged  service,  were  claiming  to  be,  and  were  acting  as,  the  official 
representatives  of  the  grove.  Their  elections,  it  is  indeed  claimed, 
were  irregular  and  void.  But  it  cannot  be  determined  from  the  record 
whether  this  was  so,  or  the  contrary;  and  on  this  point  the  burden 
of  proof  was  on  the  plaintiff.  But  however  this  may  be,  the  fact  is 
indisputable  that  at  the  time  of  the  proceeding,  there  was  a  de  facto 
association,  consisting  of  members  of  the  grove,  claiming  to  be  the 
grove,  and  represented  by  its  de  facto  officers.  And  under  these  cir- 
cumstances it  was  not  consistent  with  good  faith  for  the  Grand 
Grove  to  serve  Clivio  and  Moresi  as  representatives  of  the  Garibaldi 
Grove  and  its  members,  or  for  them  to  acknowledge  service,  and  to 
stipulate  for  immediate  trial,  on  their  behalf.  For  the  effect  of  thus 
proceeding  was  to  deprive  the  members  of  the  grove  in  opposition, 
and  claimed  to  be  recalcitrant,  of  the  opportunity  to  be  heard,  and 
thus  to  deprive  them  of  their  shares  of  the  property  of  the  associa- 
tion without  due  process  of  law.  And  such,  manifestly,  was  the 
purpose  of  the  proceeding. 

But  apart  from  these  considerations,  and  assuming  that  Clivio 
and  Moresi  were  the  officers  of  the  association,  there  was  no  evi- 
dence of  any  provision  of  the  charter,  constitution,  or  by-laws  of  the 
association  prescribing  vicarious  service  on  them  or  authorizing 
them  to  accept  service.  Hence  jurisdiction  could  be  acquired  only 
by  personal  service  on  the  members  (1  Bacon  on  Benefit  Societies, 
sec.  101);  and  there  is  no  pretense  of  such  service. 

Much  stress,  however,  is  laid  on  the  finding  of  the  court  that  Mr. 
Lovie  "appeared  before  [the  trial]  committee  on  the  part  of  said 
defendants,"  and  it  is  claimed  that  jurisdiction  was  thus  acquired. 
But  the  finding  refers  only  to  the  defendants  in  this  action,  and 
cannot  be  construed  as  referring  to  any  other  members  of  the  asso- 
ciation. And  it  also  appears  from  the  finding  that  the  only  authority 
exercised  or  claimed  by  Mr.  Lovie  was  the  authority  given  him  by 
Duchein;  whose  authority  does  not  appear.  .  .  . 

2.  With  reference  to  the  jurisdiction  of  the  Grand  Grove  over 
the  subject  matter  of  the  proceeding,  the  case  is  no  better.  The 
charges  against  the  Garibaldi  Grove,  as  they  appear  in  the  written 


716  INTERNAL   GOVERNMENT   OF   UNIONS        [CHAP.  XIV 

accusation,  are  of  two  kinds  —  the  one  consisting  of  the  general 
charge  that  the  offending  grove  "had  violated  the  terms  of  its  char- 
ter," and  "had  refused  to  obey  the  directions  and  laws  of  the  Grand 
Grove,"  etc.;  the  other,  of  charges  of  specific  acts  that  do  not  appear 
to  be  violations  of  any  of  the  provisions  of  the  charter,  or  of  the 
constitution  or  by-laws  of  the  Grand  Grove,  or  even  to  be  acts  of  the 
Garibaldi  Grove,  as  distinguished  from  the  acts  of  its  members. 
There  was,  therefore,  no  offense  charged  against  the  accused  associa- 
tion, or  at  least  no  offense  justifying  forfeiture.  And  the  findings 
of  the  trial  committee  are  equally  defective. 

On  both  grounds,  therefore,  the  case  comes  clearly  under  the  con- 
stitutional provision  that  no  one  "shall  be  deprived  of  .  .  .  property 
without  due  process  of  law."  (Const.,  art.  I,  sec.  13;  U.  S.  Const., 
art.  XIV,  sec.  1.) 

I  advise  that  the  judgment  and  order  denying  a  new  trial  be  re- 
versed and  the  cause  remanded,  with  directions  to  the  court  below 
to  sustain  the  demurrer  to  the  complaint. 

Gray,  C,  and  Haynes,  C,  concurred. 

For  the  reasons  given  in  the  foregoing  opinion  the  judgment  and 
order  denying  a  new  trial  are  reversed  and  the  cause  remanded, 
with  directions  to  the  court  below  to  sustain  the  demurrer  to  the 
complaint. 

Temple,  J.,  Harrison,  J.,  Garoutte,  J. 

Hearing  in  Bank  denied.^ 

^  Meurer  v.  Detroit  Musicians'  Benevolent  &  Protective  Assn.,  95  Mich.  451. 


PART   III 

CHAPTER  XV 

USE  OF  THE  INJUNCTION  AGAINST  LABOR 
ORGANIZATIONS ' 

Section  1 .    Historical  Development  of  the  Injunction  Remedy 
in  Labor  Cases 

Spence,  Equitable  Jurisdiction  of  the  Court  of  Chancery.^ 
The  Chancellor,  therefore,  at  the  very  outset  of  Richard's  ^  reign, 
the  king  himself  being  of  tender  years,  with  the  sanction  no  doubt 
of  the  Council,  exercised  an  authority,  especially  in  favor  of  the 
weak,  for  repressing  disorderly  obstructions  to  the  course  of  the  law, 
and  punishing  the  defaults  of  the  officers  who  were  entrusted  with 
its  administration,  and  affording  a  civil  remedy  in  cases  of  violence 
and  outrage,  which,  for  whatever  might  be  the  reason,  could  not  be 
effectually  redressed  through  the  ordinary  tribunals.  .  .  .  But 
many  powerful  reasons  operated  to  induce  persons  of  all  classes  to 
apply  for  the  powerful  aid  of  the  Chancellor  in  cases  which  were  not 
strictly  within  the  range  of  the  principles  above  adverted  to.  .  .  . 

On  the  establishment  of  the  Star  Chamber,  though  the  Court  of 
Chancery  continued  to  exercise  jurisdiction  simply  to  give  reparation 

1  As  to  the  modern  use  of  the  injunction  in  labor  cases,  see  R.  C.  McMurtrie, 
Equity  Jurisdiction  Apphed  to  Crimes,  31  Am.  Law  Reg.  (n.  s.)  1  (1892);  C.  C. 
Allen,  Injunction  and  Organized  Labor,  28  Am.  Law  Rev.  828  (1894);  Wm. 
Draper  Lewis,  A  Protest  against  Administering  Criminal  Law  bv  Injunction, 
Am.  Law  Reg.  &  Rev.,  vol.  33  (n.  s.),  p.  879  (1894);  F.  J.  Stimson,"^The  Modern 
Use  of  Injunctions,  10  Pol.  Sci.  Quart.  189  (1895);  Wm.  H.  Dunbar,  Government 
by  Injunction,  13  L.  Q.  Rev.  347  (1897);  Charles  Noble  Gregory,  Government 
by  Injunction,  11  Harvard  Law  Rev.  487  (1898);  Edwin  S.  Mack,  The  Revival 
of  Criminal  Equity,  16  Harvard  Law  Rev.  389  (1903);  Jackson  H.  Ralston, 
Government  by  Injunction,  5  Cornell  Law  Quart.  424  (1920).  See  also,  Wm.  G. 
Peterkin,  Government  by  Injunction,  3  Va.  Law  Reg.  549;  S.  S.  P.  Patteson, 
Government  by  Injunction,  3  Ibid.  625;  James  W.  Bryan,  Injunctions  against 
Strikes,  40  Am.  Law  Rev.  42,  196  (1906);  F.  C.  Donnell,  Injunctions  against 
Strikes,  65  Central  Law  Jour.  273;  Percy  L.  Edwards,  Government  by  Injunc- 
tion, 57  Albany  Law  Jour.  8;  Samuel  Seabury,  The  Abuses  of  Injunction,  29 
Arena,  561 ;  C.  H.  Fauntleroy,  Government  by  Injunction,  69  Central  Law  Jour. 
129;  Thos.  F.  Hargis,  Government  by  Injunction,  4  Amer.  Fed.  227. 

See  also,  Report  of  U.  S.  Industrial  Commission  (1901),  vol.  17,  p.  611;  High 
on  Injunctions  (4th  ed.),  sees.  1415,  a-m. 

2  Vol.  1,  pp.  343,  689. 

3  I.  e.,  Richard  II.  —  Ed. 


718  THE    INJUNCTION  [CHAP.  XV 

for  outrage,  where  punishment  was  to  be  inflicted,  the  offending 
party,  as  has  already  been  observed,  was  generally  handed  over  to 
the  Star  Chamber,  of  which  the  Chancellor  was  a  prominent  mem- 
ber.^ 

When,  however,  an  improved  state  of  society  diminished  the 
frequency  of  crime,  and  the  state  of  the  country  permitted  that  the 
powers  of  the  magistracy  and  of  the  ordinary  tribunals  should  be 
efficiently  exerted  for  the  repression  of  outrage  and  violence,  and 
an  effectual  supervision  was  exercised  over  the  magistrates  them- 
selves; and  when  the  jurisdiction  of  the  ordinary  courts  to  afford 
Compensation  for  injuries,  as  well  as  to  inflict  punishment,  was  com- 
pletely established,  the  necessity  for  the  interference  of  the  Court 
of  Chancery  in  such  matters  ceased,  and  the  Court  of  Chancery  re- 
nounced its  jurisdiction.  In  modern  times  the  Court  of  Chancery 
has  refused  to  exercise  any  jurisdiction  for  the  repression  of  crimes, 
or  even  to  afford  its  aid  to  the  criminal  jurisdiction  of  the  courts 
of  common  law. 


SPRINGHEAD  SPINNING  CO.  v.  RILEY 

Chancery.     1868 

L.  R.  6  Equity,  551 

This  was  a  demurrer  to  a  bill  filed  bj^  the  Springhead  Spinning 
Co.,  Limited,  carrying  on  business  as  cotton  spinners  at  Spring- 
head Lees,  near  Oldham,  in  the  county  of  Lancaster,  where  they 
employed  a  large  number  of  hands,  against  J.  Riley  and  J.  Butter- 
worth,  the  president  an3  secretary  of  an  incorporated  society,  calling 
itself  the  Operative  Cotton  Spinners,  Self-acting  Minders,  and 
Turners'  Provincial  Association,  which  was  a  voluntary  association 
of  persons  supported  by  moneys  contributed  by  the  members,  and 
against  a  printer  named  Carrodus.  The  book  of  rules  of  the  asso- 
ciation contained  a  preface  urging  on  the  members  the  necessity  of 
combination,  and  concluded  with  rules  for  the  settlement,  by  the 
committee  of  the  association,  of  all  disputes  between  workmen  and 

'  The  Court  of  Star  Chanil^er  exercised  criminal  jurisdiction  over  cases  of 
"oppression,  and  other  exhorbitant  offences  of  great  men,  (whom  inferiour 
judges  and  jurors  (though  they  should  not)  would  in  respect  of  their  greatnesse  be 
affraid  to  offend)  bribery,  extortion,  maintenance,  champerty,  imbracery,  forgery, 
perjury,  dispcrscrs  of  false  and  dangerous  rumours,  news,  and  scandalous  libelling, 
false  and  partiall  misdemeanours  of  sherifs  and  bailifs  of  liberties,  frauds,  deceits, 
great  and  horrible  riots,  routs,  and  unlawful!  assemblies,  single  combats,  chal- 
lenges, duels,  and  other  hainous  and  extraordinary  offences  and  misdemeanours; 
Ijut  ordinary,  and  such  offences  as  may  be  sufficiently  and  condignly  jnuiished 
};y  the  proceeding  of  the  common  laws,  this  court  leaveth  to  the  ortlinary  courts 
of  justice  and  d(!aleth  not  with  them,  ne  dignitas  hvjus  curiae  vilesceret,  as  before 
is  said."    Coke,  Fourth  Institute,  p.  63. 

The  Court  of  Star  (Jhaml)er,  "  having  })ecome  odious  by  the  tyrannical  exercise 
of  its  powers,"  was  abolished  by  the  statute  16  Car.  I,  c.  10  (1640).  —  Ed. 


* 


SECT.  I]  HISTORICAL  DEVELOPMENT  719 

their  employers,  and  for  the  payment  of  allowances  to  the  men  and 
their  families  while  on  strike. 

The  bill  contained  the  following  statements:  The  managers  of 
the  plaintiffs,  owing  to  changes  in  the  quantity  of  the  cotton  used 
in  the  winding  and  spinnings  of  the  plaintiffs,  found  it  necessary, 
about  the  month  of  February,  1868,  to  readjust  the  amounts  of  wages 
then  paid  to  the  hands  employed  in  their  mill.  Accordingly,  on  the 
27th  of  February,  a  deputation  of  the  hands,  known  as  "minders," 
was  invited  to  the  offices  of  the  plaintiffs,  and  the  proposed  altera- 
tions stated  to  them,  with  a  request  that  they  would  hold  a  meeting 
of  the  hands,  and  consider  the  matter.  On  the  4th  of  March  follow- 
ing, the  defendants  Riley  and  Butterworth,  together  with  two  per- 
sons representing  themselves  as  two  of  the  managing  committee  of 
the  association,  called  on  the  plaintiffs'  managers,  and  stated  they 
came  as  representatives  of  the  association.  The  plaintiffs'  managers 
furnished  the  last-named  defendants  and  their  companions  with 
the  proposed  list  of  prices.  The  defendants  expressed  themselves 
content  with  the  proposed  readjustment  of  wages,  and  left  the  plain- 
tiffs' premises  at  about  the  dinner  hour  of  the  hands. 

Upon  the  return  of  the  hands  certain  of  the  "minders,"  with  the 
concurrence,  and,  in  fact,  at  the  instigation  of  the  defendants  Riley 
and  Butterworth,  and  other  members  of  the  association  not  known 
to  the  plaintiffs,  gave  notice  of  their  intention  to  leave  at  the  expira- 
tion of  a  week,  and  on  the  Uth  of  March  the  hands,  consisting  of 
minders  and  piecers,  quitted  the  plaintiffs'  employ. 

There  were,  in  fact,  many  persons  competent  and  willing  to  take 
the  situations  vacated  by  the  hands  who  had  so  left  the  plaintiffs' 
employ.  But  in  order  to  prevent  such  persons  from  entering  into 
engagements  with  the  plaintiffs  for  carrying  on  their  business,  and 
to  prevent  the  hands  who  had  so  quitted  the  plaintiffs'  employ  from 
re-engaging  themselves,  the  defendants  Riley  and  Butterworth  had 
recently,  with  the  assent  and  concurrence  of  the  members  for  the 
time  being  of  the  association,  and  out  of  moneys  contributed  by  the 
association  for  that  purpose,  published,  and  caused  to  be  posted  on 
the  walls  and  other  public  places  in  the  neighbourhood  of  Spring- 
head Lees  and  Oldham,  divers  placards  in  the  following  words: 
"Wanted  all  well-wishers  to  the  Operative  Cotton  Spinners,  etc., 
Association  not  to  trouble  or  cause  any  annoyance  to  the  Spring- 
head Spinning  Co.,  Lees,  by  knocking  at  the  door  of  their  office  until 
the  dispute  between  them  and  the  self-actor  minders  is  finally  ter- 
minated. .By  special  order."  —  "Carrodus,  32,  Greaves  Street, 
Oldham." 

The  defendants  Riley  and  Butterworth,  with  the  hke  assent  and 
out  of  the  like  moneys  also,  in  order  to  prevent  persons  from  enter- 
ing into  engagements  with  the  plaintiffs  for  carrying  on  the  business, 
caused  to  be  inserted  in  the  Manchester  Guardian  and  other  newsr 
papers,  having  a  large  circulation  in  Springhead  Lees  and  Oldham, 


720  THE    INJUNCTION  [CHAP.  XV 

and  elsewhere,  where  the  persons  reside  who  would  be  willing  to  work 
for  the  plaintiffs,  an  advertisement  similar  to  the  placard  before  set 
forth. 

(Par.  17).  The  said  placards  and  advertisements  were  part  of  a 
scheme  of  the  defendants  Rilej^  and  Butterworth,  and  the  said  asso- 
ciation, whereby  they,  by  threats  and  intimidation,  prevented  per- 
sons from  hiring  themselves  to,  or  accepting  work  from,  the  plaintiffs, 
and  there  were  divers  persons  in,  and  in  the  neighbourhood  of  Spring- 
head, and  elsewhere,  who,  by  reason  of  such  notices  and  the  liabilities 
under  which  they  would  place  them  in  regard  to  the  association,  were 
intimidated  and  prevented  from  hiring  themselves  to  the  plaintiffs. 

Letters  of  remonstrance  were  sent  by  the  plaintiffs'  solicitor  to 
the  defendants  Riley  and  Butterworth,  and  Carrodus  and  other 
persons,  against  the  continuance  of  the  advertisements  and  placards, 
and  a  public  notice  was  issued  to  all  persons  in  the  neighbourhood, 
warning  them  against  the  continuance  of  the  printing  and  publish- 
ing of  these  placards. 

Notwithstanding  such  public  notice  and  letters,  the  defendants 
threatened  and  intended  to  publish  other  placards  and  advertise- 
ments of  a  similar  nature.  The  defendants  Riley  and  Butterworth, 
and  the  association,  had,  by  means  of  such  notices  and  advertise- 
mnets,  in  fact,  intimidated  and  prevented  divers  persons  from  hiring 
themselves  to,  and  accepting  work  or  employment  from,  the  plain- 
tiffs, although  such  persons  were  willing  to  work  for,  and  to  hire 
themselves  to  and  accept  work  from  the  plaintiffs,  and  in  particular, 
the  defendants  had  prevented  P.  Killeen  and  B.  Chadderton  from 
so  hiring  themselves,  and  had,  in  fact,  by  the  means  aforesaid,  forced 
the  said  Killeen  and  Chadderton  to  depart  from  the  hiring  which 
already  subsisted  between  them  and  the  plaintiffs. 

The  defendant  Carrodus  had,  since  he  was  communicated  with 
on  behalf  of  the  plaintiffs,  reprinted  and  republished  such  placards 
as  aforesaid. 

(Par.  30).  The  business  carried  on  by  the  plaintiffs  was  one  of 
considerable  magnitude,  and  the  good- will  thereof  was  worth  many 
thousand  pounds.  It  was  essential  to  the  maintenance  of  such  good- 
will that  the  plaintiffs'  business  should  be  continued  as  a  going  con- 
cern, and  any  stoppage  of  the  plaintiffs'  mill,  in  addition  to  the  large 
loss  arising  from  the  cessation  of  work,  greatly  depreciated  the  value 
of  the  good-will  of  the  plaintiffs'  business,  and  was,  in  fact,  an  ir- 
reparable damage  to  the  corpus  of  their  property. 

(Par.  31).  By  the  acts  of  the  defendants  the  plaintiffs  were  in- 
tended by  the  defendants  to  be,  and  were,  in  fact,  prevented  from 
obtaining  any  persons  willing  to  work  at  their  mill  or  factory,  and 
thereby  the  plaintiffs  were  sustaining  an  actual  damage  or  loss 
amounting  to  178/.,  or  thereabouts,  per  week,  and  were  in  addition 
prevented  from  carrying  on  the  business  as  a  continuous  and  going 
concern,  whereby  the  value  of  the  corpus  of  the  plaintiffs'  property 


SECT.  I]  HISTORICAL  DEVELOPMENT  721 

was  seriously  diminished,  and  was  put  in  jeopardy  of  being  lost 
entirely. 

The  bill  prayed  that  the  defendants  Kiley  and  Butterworth,  as 
well  on  their  own  behalf  as  on  behalf  of  all  other  the  members  of 
the  association,  their  servants  and  agents,  might  be  restrained  from 
printing  or  publishing  any  placards  or  advertisements  similar  to 
those  already  set  forth,  or  to  the  like  effect,  whereby  the  property 
of  the  plaintiffs,  or  their  business,  might  be  damnified  or  injured, 
or  whereby  any  persons  might  be  unlawfully  hindered  from  working 
in  the  plaintiffs'  mill  or  factory,  or  from  hiring  themselves  to,  or 
accepting  work  from,  the  plaintiffs,  and  that  damages  might  be 
awarded  to  the  plaintiffs  for  the  loss  and  damage  already  sustained, 
or  which  might  be  sustained,  by  them  in  respect  of  the  acts  of  the 
defendants  therein  complained  of,  and  that  the  defendants  might 
pay  the  costs  of  this  suit. 
The  defendants  demurred. 

The  Vice-Chancellor  having  granted  an  interim  injunction,  the 
case  now  came  on  for  argument  upon  the  demurrers. 

July  31.  Sir  R.  Malins,  V.  C,  after  stating  the  facts,  and  re- 
ferring to  the  Acts  6  Geo.  4,  c.  129,  the  Masters  and  Workmen's 
Act,  and  the  Act  of  1859  (20  &  21  Vict.  c.  43),  continued: 

These  Acts  have  received  an  authoritative  construction  in  the 
direction  of  Mr.  Baron  Bramwell  to  the  jury  in  the  case  of  Reg.  v. 
Druitt,  16  L.  T.  N.  S.  855.  The  substance  of  that  judgment,  in  which 
I  entirely  concur,  is  this:  That  every  man  is  at  liberty  to  induce 
others,  in  the  words  of  the  Act  of  Parliament,  "by  persuasion  or 
otherwise,"  to  enter  into  a  combination  to  keep  up  the  price  of  wages, 
or  the  like;  but  directly  he  enters  into  a  combination  which  has  as 
its  object  intimidation  or  violence,  or  interfering  with  the  perfect 
freedom  of  action  of  another  man,  it  then  becomes  an  offence  not 
only  at  common  law,  but  also  an  offence  punishable  by  the  express 
enactment  of  the  Act  6  Geo.  4,  c.  129.  It  is  clear,  therefore,  that 
the  printing  and  publishing  of  these  placards  and  advertisements 
by  the  defendants,  admittedly  for  the  purpose  of  intimidating  work- 
men from  entering  into  the  service  of  the  plaintiffs,  are  unlawful 
acts,  punishable  by  imprisonment  under  the  6  Geo.  4,  c.  129,  and  a 
crime  at  common  law. 

But  if  these  acts  amount  to  the  commission  of  a  crime  only,  it  is 
clear  that  this  Court  has  no  jurisdiction  to  restrain  them.  In  the 
celebrated  case  of  Gee  v.  Pritchard,  2  Sw.  402,  413,  the  object  of 
which  was  to  restrain  the  publication  of  letters  written  by  the  plain- 
tiff to  the  defendant.  Lord  Eldon  says:  "The  publication  of  a  libel 
is  a  crime,  and  I  have  no  jurisdiction  to  prevent  the  commission  of 
crimes,  excepting,  of  course,  such  cases  as  belong  to  the  protection 
of  infants  where  a  dealing  with  an  infant  may  amount  to  a  crime  — 
an  exception  arising  from  that  peculiar  jurisdiction  of  this  Court." 
Further  on  Lord  Eldon  says:    "The  question  will  be,  whether  the 


722  THE    INJUNCTION  [CHAP.  XV 

bill  has  stated  facts  of  which  the  Court  can  take  notice,  as  a  case  of 
civil  property,  which  it  is  bound  to  protect." 

Lord  Campbell,  in  the  case  of  the  Emperor  of  Austria  v.  Day,  3 
D.  F.  &  J.  239,  quotes  that  passage  with  approbation. 

The  jurisdiction  of  this  Court  is  to  protect  property,  and  it  will 
interfere  by  injunction  to  stay  any  proceedings,  whether  connected 
with  crime  or  not,  which  go  to  the  immediate,  or  tend  to  the  ultimate, 
destruction  of  property,  or  to  make  it  less  valuable  or  comfortable 
for  use  or  occupation.  It  will  interfere  to  prevent  the  destruction  of 
property.  .  .  .  The  familiar  cases  of  light  and  air,  nuisance,  and 
trade  marks,  will  illustrate  what  I  have  said,  namely,  that  the  court 
will  interfere  where  the  acts  complained  of  go  to  the  destruction  or 
material  diminution  of  the  value  of  property.  It  is  distinctly  charged 
by  this  biU,  and  it  is  consequently  admitted  by  the  demurrers,  that 
the  acts  of  the  defendants  which  are  complained  of  do  tend  to  the 
immediate  destruction  of  the  value  of  the  plaintiffs'  prope^t3^  The 
30th  and  31st  paragraphs  of  the  bill  go  distinctly  to  this  point,  and 
in  the  17th  paragraph  it  is  stated  that  these  placards  and  advertise- 
ments are,  in  fact,  part  of  a  scheme  of  the  defendants  whereby  they, 
by  threats  and  intimidation,  prevent  persons  from  hiring  themselves 
to  or  accepting  work  from  the  plaintiffs.  If  the  defendants  Riley 
and  Butterworth  had  carried  on  a  manufactorj'  in  the  neighbourhood 
of  the  plaintiff's'  works,  and  had  by  any  process  poured  noxious  va- 
pours into  the  plaintiffs'  mill  to  such  an  extent  as  to  render  it  im- 
possible for  them  to  procure  workmen  to  carry  on  their  operations, 
that  would  have  been  a  nuisance  tending  to  the  destruction  of  the 
plaintiffs'  property  which  this  court  would  have  restrained  by  in- 
junction; and  so  it  would  if  the  defendants  had,  by  darkening  their 
ancient  lights,  rendered  it  impossible  or  even  difficult  to  carr}'  on 
their  trade;  and  so  if  the  defendants  had,  by  constructing  a  material 
obstruction,  such  as  building  a  wall,  rendered  the  access  by  the 
work-people  of  the  plaintiffs  to  their  mill  impossible.  Why  should 
the  defendants  be  less  amenable  to  the  jurisdiction  of  this  court 
because  they  proceed  to  destroy  the  value  of  the  plaintiffs'  property 
in  another  but  not  less  efficacious  mode,  namel}-,  by  their  threats 
and  intimidation  rendering  it  impossible  for  the  plaintiffs  to  obtain 
workmen,  without  whose  assistance  the  property  becomes  utterly 
valueless  for  the  purposes  of  their  trade.* 

The  truth,  I  apprehend,  is,  that  the  Court  will  interfere  to  prevent 
acts  amounting  to  crime,  if  they  do  not  stop  at  crime,  but  also  go 
to  the  destruction  or  deterioration  of  the  value  of  property.  .  .  . 

The  same  rule  is  in  effect  laid  down  by  Lord  Eldon  in  the  cele- 
brated case  of  Macaulay  v.  Shackell,  1  Bli.  N.  S.  96,  127.  Lord  Eldon 
there  says:  "The  Court  of  E(}uity  has  no  criminal  jurisdiction,  but 
it  lends  its  assistance  to  a  man  who  lias,  in  the  view  of  the  law,  a 
right  of  property,  and  who  makes  out  that  an  action  at  law  will  not 


I 


SECT.  I]  HISTORICAL  DEVELOPMENT  723 

be  a  sufficient  remedy  and  protection  against  intruding  upon  his 
publication."  .  .  . 

In  the  present  case,  the  acts  complained  of  are  illegal  and  criminal 
by  the  Act  of  Geo.  4,  and  it  is  admitted  by  the  demurrers  that  they 
were  designedly  done  as  part  of  a  scheme,  by  threats  and  intimida- 
tion, to  prevent  persons  from  accepting  work  from  the  plaintiffs, 
and,  as  a  consequence,  to  destroy  the  value  of  the  plaintiffs'  property. 
It  is,  in  my  opinion,  within  the  jurisdiction  of  this  Court  to  prevent 
such  or  any  other  mode  of  destroying  property,  and  the  demurrers 
must,  therefore,  be  overruled. 

The  defendant  Carrodus,  as  stated  in  the  bill,  persisted  in  re- 
printing and  republishing  the  placards  and  advertisements  after  a 
warning  from  the  plaintiffs,  and  his  demurrer  must  consequently  be 
overruled. 

In  coming  to  this  conclusion  I  desire  to  be  understood  as  deciding 
simply  on  what  appears  upon  this  bill  and  these  demurrers.  For  the 
reasons  I  have  stated  I  overrule  these  demurrers,  because  the  bill 
states,  and  the  demurrers  admit,  acts  amounting  to  the  destruction 
of  property.  Upon  the  general  question  whether  this  court  can 
interfere  to  prevent  these  unlawful  proceedings  by  workmen  issuing 
placards  amounting  to  intimidation,  and  whether  acts  of  intimida- 
tion generally  would  go  to  the  destruction  of  property,  that  will 
probably  have  ultimately  to  be  decided  at  the  hearing  of  this  cause. 
In  the  nieantime  I  would  only  make  this  observation,  that  by  the 
Act  of  Parliament  it  is  recited  that  all  such  proceedings  are  injurious 
to  trade  and  commerce,  and  dangerous  to  the  security  and  personal 
freedom  of  individual  workmen,  as  well  as  the  security  of  the  prop- 
erty and  persons  of  the  public  at  large ;  and  if  it  should  turn  out  that 
this  Court  has  jurisdiction  to  prevent  these  misguided  and  misled 
workmen  from  committing  these  acts  of  intimidation,  which  go  to 
the  destruction  of  that  property  which  is  the  source  of  their  own 
support  and  comfort  in  life,  I  can  only  say  that  it  will  be  one  of  the 
most  beneficial  jurisdictions  that  this  Court  ever  exercised. 

With  regard  to  the  costs,  I  do  not  intend,  considering  the  novelty 
and  importance  of  the  question  raised  bj^  this  bill  and  these  de- 
murrers, to  overrule  them  with  costs  in  the  ordinary  course,  but  I 
shall  reserve  the  costs.  ^ 

1  This  seems  to  be  the  earliest  case  in  which  a  court  of  equity  granted  an  in- 
junction to  protect  employers  against  their  striking  employees.  See  13  L.  Q.  Rev. 
p.  348. 

"The  opinion  in  support  of  this  decision  [i.e..  Springhead  Spinning  Co.  v. 
Riley]  was  strongly  disapproved  by  the  Court  of  Appeal  in  Prudential  Assurance 
Co.  V.  Knott,  L.  R.  10  Ch.  142;  and  Chief  Justice  Gray  of  the  Supreme  Judicial 
Court  of  Massachusetts,  now  Mr.  Justice  Gray  of  the  United  States  Supreme 
Court,  declared  that  it  appeared  to  be  '  so  inconsistent  with  '  the  authorities 
'  and  with  well  settled  principles,  that  it  would  be  superfluous  to  consider  whether, 
upon  the  facts  before  him,  his  decisions  can  be  supported.'     (Boston  Diatite  Co. 


724  THE    INJUNCTION  [CHAP.  XV 

SHERRY  V.  PERKINS 

Supreme  Judicial  Court  of  Massachusetts.     1888 

147  Mass.  212 

Bill  in  equity,  filed  April  20,  1887,  alleging  that  the  first-named 
plaintiff  was  engaged  in  the  business  of  manufacturing  boots  and 
shoes  in  Lj^nn,  and  that  he  had  admitted  the  other  plaintiffs,  who 
were  in  his  employment  as  operatives,  to  share  in  the  profits  of  the 
business;  that  there  was  a  voluntary  association  in  Lynn  called  the 
Lasters'  Protective  Union,  composed  of  persons  engaged  in  lasting 
boots  and  shoes,  of  which  the  first-named  defendant  was  the  presi- 
dent, and  the  other  defendant,  Charles  H.  Leach,  was  the  secretary; 
that  on  January  5,  1887,  Leach,  acting  for  himself  and  Perkins, 
called  upon  Sherry  to  inquire  as  to  the  wages  of  his  lasters,  and  was 
told  that  such  wages  were  to  be  fixed  by  the  lasters;  that  on  January 
8,  1887,  certain  lasters  left  the  plaintiffs'  employment,  giving  as  a 
reason  therefor  that  they  did  not  dare  to  work  for  them  further  on 
account  of  the  defendants;  that,  in  order  to  intimidate  others  from 
taking  their  places  and  to  prevent  such  lasters  from  re-engaging  in 
their  employment,  the  defendants,  on  January  8,  1887,  with  the  as- 
sent of  the  association  and  out  of  its  moneys,  caused  to  be  carried 
in  front  of  Sherry's  factory,  by  a  boy  hired  for  that  purpose,  a  banner 
bearing  the  following  inscription:  "Lasters  are  requested  to  keep 
away  from  P.  P.  Sherry's.     Per  order  L.  P.  U." 

The  bill  further  alleged,  that,  because  of  such  banners,  crowds 
of  people  gathered  in  front  of  the  factory  when  the  lasters  left  their 
work;  that  the  lasters  were  injured  and  threatened  with  bodily 
harm  if  they  continued  in  the  plaintiffs'  employment;  that  various 
lasters,  whose  names  were  given,  were  subsequently  called  upon  by 
the  defendants,  and  so  intimidated  and  injured  that  one  of  them 
was  confined  to  his  house  and  another  left  the  plaintiffs'  employ- 
ment; that  the  banner  and  the  acts  of  the  defendants  were  part  of  a 
scheme  to  prevent  persons  from  entering  the  plaintiffs'  emplo^^ment, 
and  that  the  banner  was  carried  in  front  of  the  factory  until  March 
22,  1887,  when  the  defendants,  with  a  like  purpose  and  at  a  time 
when  there  was  no  strike  in  the  factory  or  trouble  with  the  operatives, 
caused  another  banner  to  be  carried  in  like  manner  before  the  fac- 
tory, with  the  following  inscription:  "Lasters  on  a  strike  and  lasters 
are  n^questcuj  to  keep  away  from  P.  P.  Sherry's  until  the  present 
trouble  is  settled.     Per  order  L.  P.  U." 

The  bill  also  alleged  that  Sherry  had  remonstrated  with  the  de- 

V.  Florence  Manufar-turing  Co.,  114  Mass.  00,  70.)  Those  criticisms  wore  per- 
hai)s  rather  excitfid  by  the  reasons  stated  for  granting  the  injunction  than  l)y  the 
I)rincii)le  of  giving  relief  in  cases  of  such  a  cla.ss;  at  least  it  is  certain  that  the 
precedent  thus  made  has  been  witlely  followed  in  later  ca.ses  under  circumstances 
.substantially  .similar."    William  H.  Dunijar,  Esq.,  in  13  Law  Quart.  Rev.  348. 


! 


SECT.  I]  HISTORICAL   DEVELOPMENT  725 

fendants  without  effect;  that  the  business  carried  on  by  the  plain- 
tiffs was  a  large  one,  and  that  the  good- will  was  of  considerable  value, 
both  of  which,  if  the  defendants  were  permitted  to  continue,  would 
be  seriously  injured  and  destroyed. 

The  prayer  of  the  bill  was,  that  the  defendants  might  be  restrained 
from  making  such  banners,  and  from  causing  theiu  to  be  similarly 
carried,  and  for  further  relief. 

Hearing  before  C.  Allen,  J.,  wlio  found  as  facts,  that  members  of 
the  Lasters'  Protective  Union  entered  into  a  scheme,  by  threats  and 
intimidation,  to  prevent  persons  in  the  employment  of  tlu^  plaintiffs 
as  lasters  from  continuing  in  such  employment,  and  in  like  manner 
to  prevent  other  persons  from  entering  into  such  employment  as 
lasters;  that  the  defendants  participated  in  this  scheme;  that  the 
use  of  the  banners  was  a  part  of  the  scheme;  that  the  first  banner 
was  carried  from  January  8,  1887,  to  March  22,  1887,  and  the  second 
banner  from  March  22,  1887,  to  the  time  of  the  hearing;  and  that 
the  plaintiffs  have  been  and  are  injured  in  their  business  and  property 
thereby;  and  the  judge  reported  the  case  for  the  consideration  of 
the  full  court. 

W.  Allen,  J.  .  .  .  The  act  of  displaying  banners  with  devices, 
as  a  means  of  threats  and  intimidation  to  prevent  persons  from 
entering  into  or  continuing  in  the  employment  of  the  plaintiffs,  was 
injurious  to  the  plaintiffs,  and  illegal  at  common  law  and  by  statute. 
Pub.  Sts.  c.  74,  sec.  2.  Walker  v.  Cronin,  107  Mass.  555.  We  think 
that  the  plaintiffs  are  not  restricted  to  their  remedy  by  an  action 
at  law,  but  are  entitled  to  relief  by  injunction.  The  acts  and  the 
injury  were  continuous.  The  banners  were  used  more  than  three 
months  before  the  filing  of  the  plaintiffs'  bill,  and  continued  to  be 
used  at  the  time  of  the  hearing.  The  injury  was  to  the  plaintiffs' 
business,  and  adequate  remedy  could  not  be  given  by  damages  in  a 
suit  at  law. 

The  wrong  is  not,  as  argued  by  the  defendants'  counsel,  a  libel 
upon  the  plaintiffs'  business.  It  is  not  found  that  the  inscriptions 
upon  the  banners  were  false,  nor  do  they  appear  to  have  been  in  dis- 
paragement of  the  plaintiffs'  business.  The  scheme  in  pursuance  of 
which  the  banners  were  displayed  and  maintained  was  to  injure 
the  plaintiffs'  business,  not  by  defaming  it  to  the  public,  but  by 
intimidating  workmen,  so  as  to  deter  them  from  keeping  or  making 
engagements  with  the  plaintiffs.  The  banner  was  a  standing  menace 
to  all  who  were  or  wished  to  be  in  the  employment  of  the  plaintiffs, 
to  deter  them  from  entering  the  plaintiffs'  premises.  Maintaining 
it  was  a  continuous  unlawful  act,  injurious  to  the  plaintiff's'  business 
and  property,  and  was  a  nuisance  such  as  a  court  of  equity  will  grant 
rehef  against.  Gilbert  v.  Mickle,  4  Sandf.  Ch.  357.  Springhead 
Spinning  Co.  v.  Riley,  L.  R.  6  Eq.  551. 

Boston  Diatite  Co.  v.  Florence  Manuf.  Co.,  114  Mass.  69,  was  a 
case  of  defamation  only.    Some  of  the  language  in  Springhead  Spin- 


726  THE    INJUNCTION  [CHAP.  XV 

ning  Co.  v.  Rilej^  has  been  criticised,  but  the  decision  has  not  been 
overruled.  See  Boston  Diatite  Co.  v.  Florence  Manuf.  Co.,  uhi 
sxi-pra.;  Prudential  Assurance  Co.  r.  Knott,  L.  R.  10  Ch.  142;  Saxby 
V.  Easterbrook,  3  C.  P.  D.  339;  Thorley's  Cattle  Food  Co.  v.  Massam, 
14  Ch.  D.  763;  Thomas  v.  Williams,  14  Ch.  D.  864;  Day  v.  Brown- 
rigg,  10  Ch.  D.  294;  Gaskin  v.  Balls,  13  Ch.  D.  324;  Hill  v.  Davies, 
21  Ch.  D.  798;  Hermann  Loog  v.  Bean,  26  Ch.  D.  306. 

Decree  for  the  plaintiffs.^ 


COEUR  D'ALENE  CONSOLIDATED  &  MINING  CO.  v. 
MINERS'  UNION 

United  States  Circuit  Court,  D.  Idaho.     1892 

51  Fed.  260 

Beatty,  District  Judge.  .  .  ,  The  bill  and  affidavits  accompanying  it 
show  that  complainant  is  a  foreign  corporation;  that  defendant  com- 
panies are  corporations  and  associations  organized  under  the  laws  of 
Idaho,  and  the  other  defendants  citizens  of  said  state;  that  through  de- 
fendants' wrongful  acts,  complainant  has  been  damaged  in  the  sum  of 
$50,000;  that  complainant  owns  valuable  mining  property  in  Shoshone 
county,  Idaho,  which  it  desires  to  work;  that  defendants  having  con- 
spired together,  have  organized  themselves  into  the  several  miners' 
unions  named,  for  the  purpose  not  only  of  controlling  and  dictating 
the  wages  to  be  paid  them,  but  also  by  means  of  menace  and  force  to 
prevent  all  persons  not  members  of  such  unions  from  working  for 
complainant;  that,  to  make  efficient  such  organizations,  they  are 
bound  by  stringent  oaths  to  secrecy,  and  to  obedience  to  all  edicts 
and  commands  of  either  of  such  unions;  that  since  the  formation 
of  such  unions  the  members  thereof  have  adopted  a  systematic 
course  of  threats  and  intimidations  against  complainant,  and  any 
miners  desiring  to  work  for  it  who  are  not  members  of  such  unions; 
that  they  have  notified  complainant  that  it  must  employ  none  but 
those  who  belong  to  such  orders,  and  at  the  wages  fixed  by  the  lat- 
ter; that  they  have  entered  upon  complainant's  mines,  and  by 
force  removed  therefrom  its  employes,  and  given  out  and  threatened 
that  they  would  continue  to  prevent  any  but  the  members  of  such 
unions  from  working  therein;  that  by  reason  of  the  premises  com- 
plainant has  been  compelled  to  cease  work;  that  all  the  defendants 
are  utterly  insolvent,  and  unable  to  respond  in  damages;  that  by 
the  affidavits  of  two  of  complainant's  employes,  it  appears  that  on 
the  29th  day  of  last  April  about  a  hundred  men,  headed  by  defend- 
ant John  Tobin,  went  to  complainant's  mine,  where  affiants  were 

'  Accord:  Casey  v.  Cincinnati  Typographical  Union,  45  Fed.  135  (1S91) 
(held,  that  a  combination  or  a  conspiracy  by  a  trade  union  to  boycott  a  news- 
paper for  refusing  to  unionize  its  office  is  illegal  and  unlawful,  and  will  be  enjoined 
by  a  court  of  etjuityj. 


SECT.  I]  HISTORICAL   DEVELOPMENT  727 

at  work,  and  forcibly  ejected  them  therefrom,  took  them  to  the 
Miners'  Union  Hall,  at  Burke,  where,  in  the  presence  of  a  large  num- 
ber of  men,  it  was  demanded  they  should  join  the  union  or  leave  the 
camp;  that  upon  their  refusal  to  do  cither  it  was  ordered  by  the 
-meeting  that  they  be  marched  out  of  the  state;  that  thereupon  they 
were  escorted  in  the  direction  of  Thompson  Falls,  Mont.,  by  at  least 
200  men,  who  beat  oil  cans  in  imitation  of  drums;  that  they  were 
called  "scabs,"  and  coarse  indignities  were  frequently  heaped  upon 
them;  that  in  this  manner  they  were  driven  from  the  state,  denied 
■the  privilege  of  purchasing  food,  and  for  two  days  were  without  any, 
and  exposed  to  the  inclemency  of  the  weather  in  crossing  a  snowy 
range  into  the  State  of  Montana.  Upon  these  and  similar  allegations 
contained  in  said  complaint  and  affidavits,  it  was  ordered  that  the 
defendants  be  restrained  from  entering  upon  complainant's  mines, 
or  from  interfering  with  the  working  thereof,  or  by  the  use  of  force, 
threats,  or  intimidations,  or  by  other  means,  from  interfering  with 
or  preventing  complainant's  employes  from  working  upon  its  mines; 
and  that  the  defendants  show  cause  why  they  should  not  be  so 
restrained  pending  this  action. 

In  response  to  such  order  defendants  have  by  numerous  affidavits 
denied  most  of  such  allegations,  and  especially  those  charging  a 
resort  to  threats  or  force  to  accomplish  the  object  of  their  several 
associations,  which  they  state  are  for  the  purpose  of  protecting  them- 
selves against  the  exactions  of  employers,  of  maintaining  their  wages, 
of  elevating  the  standard  of  labor  by  admission  to  their  order  only 
of  those  who  are  skilled  workmen  and  of  good  morals,  to  alleviate 
the  sufferings  of  those  overtaken  by  sickness  or  accident,  and  in 
various  ways,  and  by  all  lawful  means,  to  advance  the  interests  of 
miners,  and  to  this  end,  intemperance,  immorality,  and  the  vices 
of  life  are  discouraged.  In  rebutting  such  affidavits  the  complainant 
has  produced  others,  which  charge  the  existence  of  a  most  alarming 
and  demoralizing  state  of  society,  wherein  a  reign  of  riot,  terror,  and 
lawlessness  has  supplanted  industry,  peace,  and  law;  but  such  specific 
acts  and  matter  stated  in  the  rebutting  affidavits,  which  defendants 
could  not,  from  complainant's  original  showing,  so  anticipate  as  to 
deny,  are  not  treated  as  established.  However,  the  evidence  justifies 
the  conclusion  that  defendants  are  organized  into  associations  wherein 
submission  to  stringent  and  arbitrary  rules  is  required;  that  by 
means  approaching  dictation  they  have  attempted  to  control  em- 
ployers in  the  selection  of  laborers  and  the  wages  to  be  paid  them, 
and  have  discouraged,  and,  as  far  as  they  could,  prevented,  those 
who  do  not  belong  to  their  societies  from  procuring  work;  that  by 
force,  in  one  instance,  they  took  complainant's  laborers  from  its 
mine  to  their  hall,  where,  upon  such  laborers  refusing  to  comply 
with  their  demands  to  join  them,  and  abide  by  their  laws,  they 
actually  ordered  their  banishment  from  the  state,  and  in  a  manner 
deserving   the    most   severe    condemnation   enforced    their   lawless 


728  THE    INJUNCTION  [CHAP.  XV 

decree,  and  against  men  who,  by  reason  of  their  birth,  and  not  through 
the  grace  of  the  government,  were  entitled  to  all  the  rights  of  Ameri- 
can citizenship ;  that  in  such  numbers,  and  under  such  circumstances, 
as  were  menacing,  they  have  requested  non-union  men  to  cease 
work,  and  to  such  have  applied  in  an  offensive  and  threatening  man- 
ner most  opprobrious  epithets,  and  in  other  ways  have  annoyed  and 
vexed  laborers  who  refuse  to  join  their  associations.    I  am  not  un- 
mindful that  they  meet  these  charges  by  alleging  in  effect  that  when 
such  things  were  done  it  was  without  their  authority,  and  that  the 
meeting  referred  to  was  held  by  citizens;    but  such  defense  is  too 
transparent  to  conceal  the  truth.     Such  meeting  was  held  in  their 
hall,  was  composed  largely  of  miners,  and  was  presided  over  by  de- 
fendant John  Tobin,  who  says  "he  was,  and  now  is,  the  president 
of  the  Miners'  Union  of  Burke";  and  he  also  says  that  "the  meeting 
voted  that  they  [the  men  banished]  should  be  marched  up  the  canyon, 
upon  the  ground  that  if  they  proceeded  down  the  canyon  violence 
might   be   apprehended   from   the   outsiders."      Such   explanations 
cannot  be  received  in  exculpation  of  the  wrong  done  by  defendants, 
but,  on  the  contrar}',  they  cast  a  shadow  over  all  their  statements.  .  .  . 
After  a  most  careful  examination,  the  conclusion  that  the  fore- 
going is  a  correct  statement  of  the  facts  cannot  be  avoided.    A  wrong 
exists;    rights  have  been  infringed;    unoffending  citizens  have  been 
maltreated;   the  law  has  been  overridden.     May  the  courts  be  suc- 
cessfully invoked  for  restraining  relief.'*    That  a  national  court  has 
original  jurisdiction  in  actions  of  this  class  cannot  be  questioned,  as 
the  parties  are  of  diverse  citizenship,  and  damages  of  over  $2000 
are  involved ;  but  the  important  question  is  whether  a  court  of  chan- 
cery can  exercise  its  power  to  restrain  the  further  commission  of 
the  acts  herein  complained  of.     The  unrestrained  execution  of  the 
designs,  which  it  would  seem  from  the  record  in  this  case  the  defend- 
ants entertain,  would  result  unfortunately.    Carried  to  their  logical 
conclusion,  the  owner  of  property  would  lose  its  control  and  manage- 
ment.   It  would  be  worked  by  such  laborers,  during  such  hours,  at 
such  wages,  and  under  such  regulations,  as  the  laborers  themselves 
might  direct.    Under  such  rule,  its  possession  would  become  onerous. 
Enterprises  employing  labor  would  cease,  and,  instead  of  activity 
and  plenty,  idleness  and  want  would  follow.    Whatever  enthusiasts 
may  hope  for,  in  this  country  every  owner  of  property  may  work  it 
as  he  will,  by  whom  he  pleases,  at  such  wages,  and  upon  such  terms 
as  he  can  make;   and  every  laborer  may  work  or  not,  as  he  sees  fit, 
for  whom,  and  at  such  wages  as,  he  pleases;   and  neither  can  dictate 
to  the  other  how  he  shall  use  his  own,  whether  of  property,  time,  or 
skill.     Any  other  system  cannot  be  tolerated.     The  association  of 
laboring  men   into  organizations  for  social  enjoyment,  mental  im- 
provement, for  the  protection  of  their  interests,  and  the  amelioration 
of  their  conditions,  is  not  condemned,  either  by  the  people  or  the 
law.    On  the  contrary,  it  is  their  right  so  to  do,  and  they  have  the 


SECT.  I]  HISTORICAL   DEVELOPMENT  729 

sympathy  of  all  classes  in  their  efforts  to  advance  their  interests  by 
lawful  means.  No  one  will  view  with  envy  their  lawfully  acquired 
success,  their  comfortable  homes  and  congenial  surroundings,  all 
attainable  through  industry,  sobriety,  and  reasonable  economy.  Un- 
fortunately, combinations  of  labor  are  met  by  associations  of  em- 
ployers, each  trying  to  baffle  what  it  deems  the  aggressions  of  the 
other.  It  is  to  be  regretted  these  opposing  forces  have  in  late  years 
gone  so  far  in  their  efforts  for  supremacy  that  they  now  operate 
upon  the  principle  that  their  interests  are  antagonistic.  It  is  when 
these  contests  become  so  heated  that  violations  of  the  law,  the  peace 
of  the  community,  and  the  destruction  of  life  and  property  are  threat- 
ened, that  the  courts  are  compelled  to  intervene.  Undesirable  as 
is  the  duty,  the  court  which  avoids  it  when  presented  would  deserve 
only  contempt.  As  I  understand  the  law  and  the  facts,  this  case 
shall  be  determined  without  equivocation.  The  action  results  from 
a  controversy  concerning  wages.  The  complainant  refuses  to  accede 
to  defendants'  demands  that  the  same  wages  be  paid  to  all  the  la- 
borers; but,  while  willing  to  pay  the  usual  price  of  $3.50  per  day  to 
skilled  laborers,  declines  to  pay  over  $3  to  others.  Which  party 
may  be  right  on  this  or  any  other  matter  that  may  be  in  dispute  is 
not  for  investigation  by  the  court,  but  whether  the  defendants,  in 
attempting  to  maintain  their  position,  are  likely  to  employ  unlawful 
means,  and  the  authority  of  the  court,  if  it  so  finds,  to  restrain  them, 
alone  must  be  determined.  .  .  . 

With  much  earnestness  it  has  been  urged  that  equity  will  not  in- 
terfere for  the  prevention  of  crime.  But  wherein  is  this  a  criminal 
case,  or  how  does  the  relief  asked  constitute  this  an  action  for  in- 
junction against  the  commission  of  a  crime.''  It  is  charged  that  a 
conspiracy  has  been  formed  An  association  becomes  a  criminal 
conspiracy  when  it  is  formed  for  an  unlawful  or  criminal  purpose, 
or  if,  when  organized  for  a  lawful  purpose,  it  attempts,  by  criminal 
or  unlawful  means,  to  attain  its  object,  but  this  action  is  not  to 
prevent  the  formation  of  a  conspiracy.  It  is  alleged  that  defend- 
ants have  done  certain  unlawful  acts,  and  threaten  to  continue 
doing  them;  but  none  of  such  acts  are  per  se  criminal,  or  enjoined 
by  the  criminal  statutes.  The  most  that  can  be  said  of  them  is  that 
they  are  such  as  interfere  with  the  rights  of  others,  and  are  therefore 
unlawful.  It  is  also  true  that  they  might  lead  to  the  commission  of 
other  acts  purely  criminal,  and  that  by  restraining  them  we  indirectly 
prevent  the  commission  of  crimes;  but  it  is  absurd  to  conclude 
that  by  such  indirect  prevention  of  crime  this  can  be  construed  as 
an  action  to  restrain  its  commission. 

Without  further  pursuing  this  view,  we  are  brought  to  the  impor- 
tant question  involved, —  whether  the  acts  complained  of,  considered 
as  unlawful  and  not  criminal,  may  be  restrained,  and  further  injury 
to  complainant  avoided,  or  whether  it  must  seek  relief  by  an  action 
at  law.    The  threatened  acts  are  such  that  their  frequent  occurrence 


730  THE    INJUNCTION  [CHAP.  XV 

might  be  expected,  and  to  obtain  legal  redress  therefor  the  annoy- 
ance of  a  multiplicity  of  suits  would  follow;  also  it  is  alleged  that 
defendants  are  insolvent ,  —  both  of  which  are  among  the  prime  rea- 
sons that  appeal  to  a  court  of  equity  for  its  preventive  relief.^  .  .  . 
A  clear  distinction  will  be  observed  between  the  two  classes  of 
cases  above  noted.  In  the  one,  when  the  acts  complained  of  consist 
of  such  misrepresentations  of  a  business  that  they  tend  to  its  injury, 
and  damage  to  its  proprietor,  the  offense  is  simply  a  libel;  and  in 
this  country  the  courts  have  with  great  unanimity  held  that  they 
will  not  interfere  by  injunction,  but  that  the  injured  party  must 
rely  upon  his  remedy  at  law.  On  the  contrary,  when  the  attempt  to 
injure  consists  of  acts  or  words  which  will  operate  to  intimidate  and 
prevent  the  customers  of  a  party  from  dealing  with  or  laborers  from 
working  for  him,  the  courts  have  with  nearly  equal  unanimity  inter- 
posed by  injunction.  In  the  one  case  it  is  an  injury  to  a  man's  busi- 
ness by  libeling  it;  in  the  other,  by  force,  threats,  and  other  like 
means,  he  is  prevented  from  pursuing  it;  and,  while  the  damage 
might  be  as  great  in  one  case  as  in  the  other,  —  but  most  likel}^  with 
different  consequences  to  the  good  order  and  peace  of  the  community, 
—  the  courts  have  determined  upon  different  remedies.  What  con- 
stitute such  actionable  threats  or  intimidations  must  be  determined 
in  each  case  from  all  the  circumstances  attending  it.  If  the  things 
done  or  the  words  spoken  are  such  that  they  will  excite  fear  or  a  rea- 
sonable apprehension  of  damages,  and  so  influence  those  for  whom 
designed  as  to  prevent  them  from  freely  doing  what  they  desire,  and 
the  law  permits,  they  may  be  restrained,  and  the  courts  will  look 
beyond  the  mere  letter  of  the  act  or  word  into  its  spirit  and  intent. 
In  this  case,  however,  it  is  unnecessary  to  enter  into  any  close  analysis 
of  the  acts  complained  of  to  determine  that  they  amount  to  menace 
and  threats,  for  they  clearly  were  in  a  high  degree  of  that  character. 
That  they  may  not  be  repeated  the  restraining  order  is  continued, 
pending  the  final  disposition  of  this  action.^  .  .  . 


DAVIS  V.  ZIMMERMAN 

Supreme  Court  of  New  York.     1895 

91  Hun,  489 

FoLLETT,  J.  This  action  was  begun  June  21,  1895,  to  restrain  "!;he 
defendants  (1)  from  inducing  the  plaintiff's  employees  to  leave  his 
service  by  force,  threats  or  intimidation;  (2)  from  preventing  per- 
sons from  entering  plaintiff's  service  by  force,  threats  or  intimidation; 
(3)  from  destroying  plaintiff's  property.    This  is  the  gist  of  the  relief 

'  The  Court  here  enters  upon  an  examination  of  various  cases  in  which  injunc- 
tions were  sought.  —  Ed. 

^  As  to  the  practical  effect  of  the  iiijuiictioti  in  this  case,  see  10  I'ol.  Sci.  (Juart. 
193.  —  Eu. 


SECT.  I]  HISTORICAL  DEVELOPMENT  731 

sought  by  the  action  and  granted  by  the  temporary  injunction  issued 
June  21,  1895,  and  continued  by  an  ordef  of  the  Special  Term  en-, 
tered  August  26,  189b. 

The  plaintiff  now  is,  and  for  fifteen  years  last  passed  has  been,  a 
manufacturer  of  hats  and  caps  at  the  city  of  New  York,  employing 
a  large  amount  of  capital  and  about  seventy-five  employees,  known 
as  "hat  and  cap  operators,"  who  are  members  of  the  "Cloth  Hat 
&  Cap  Operators'  Union,"  a  society,  the  members  of  which  reside 
in  or  near  the  city  of  New  York. 

It  is  alleged  in  the  complaint  that  on  the  8th  of  June,  1895,  the 
plaintiff's  employees  and  other  members  of  said  union,  demanded 
that  the  plaintiff  should  enter  into  certain  contracts  with  his  em- 
ployees relating  to  the  conduct  of  his  business,  and  that  in  default 
thereof  said  employees  threatened  to  quit  work  and  cause  the  sus- 
pension of  business  in  the  plaintiff's  factory  until  such  time  as  the 
demands  of  the  union  should  be  acceded  to.  The  plaintiff  refused 
to  execute  the  contracts,  and  thereupon  a  strike  was  ordered,  and 
plaintiff's  employees  left  his  service.  It  is  also  alleged  that  the  de- 
fendants entered  into  a  conspiracy  to  destroy  plaintiff's  business, 
and  to  prevent  him  from  carrying  it  on,  and  to  carry  out  the  con- 
spiracy the  defendants  stationed  a  large  number  of  persons,  called 
pickets  and  patrolers,  in  front  of  and  near  the  plaintiff's  factory, 
who  by  threats  and  personal  violence  intimidated  other  persons  from 
entering  plaintiff's  service.  It  is  further  alleged  that  manj^  of  the 
defendants,  in  furtherance  of.  their  conspiracy,  have  violently  as- 
saulted and  injured  the  new  employees  of  the  plaintiff.  It  is  alleged 
that  the  plaintiff,  by  the  defendants'  acts,  has  been  compelled  to 
establish  factories  in  other  towns:  that  he  had  one  at  Rutherford, 
New  Jersey,  and  that  on  June  18,  1895,  several  of  the  defendants, 
at  the  instigation  and  upon  the  order  of  said  union,  destroyed  the 
plaintiff's  machinery  and  property  at  that  place,  of  the  value  of 
S500,  and  by  force,  threats  and  violence  induced  the  hands  there 
employed  to  leave  their  work.  The  complaint  contains  other  alle- 
gations of  like  nature  not  necessary  to  be  described  particularly.  It 
is  alleged  that  the  damages  to  his  business  occasioned  by  these  acts 
are  great  and  irreparable ;  that  they  cannot  be  ascertained  and  recov- 
ered in  an  action  at  law,  and  that  the  defendants  are  unable  to  re- 
spond in  damages. 

The  defendants,  in  their  answer,  deny  the  existence  of  the  con- 
spiracy and  the  acts  of  violence  alleged,  but  they  admit  that  they 
have  stationed  pickets  and  patrolers  near  the  plaintiff's  factories, 
have  tried  to  prevent,  by  persuasion  and  argument,  persons  from 
entering  the  plaintiff's  service,  and  also  that  some  of  plaintiff's 
property  has  been  destroyed,  but  aver  that  they  beUeve  the  plain- 
tiff procured  the  destruction  of  his  own  property  for  the  purpose  of 
charging  the  act  on  the  defendants.  The  defendants  also  allege  that 
the  plaintiff  and  other  persons  engaged  in  the  same  business,  have 


732  THE    INJUNCTION  [CHAP.  XV 

entered  into  a  conspiracy  unjustly  to  reduce  the  wages  of  employees, 
and  to  refuse  to  employ  members  of  the  union,  and  they  ask  for  a 
judgment  restraining  the  execution  of  such  alleged  conspiracy. 

Protection  to  property  is  guaranteed  by  the  Constitutions  of  the 
United  States  and  the  State  of  New  York,  and  it  is  the  duty  of  the 
courts  to  enforce  these- guarantees.  The  business  of  a  person  con- 
ducted according  to  law  is  a  property  right.  (People  v.  Barondess, 
61  Hun,  571.)  In  that  case  Mr.  Justice  Daniels  held  that  a  loss 
resulting  from  a  suspension  or  interruption  of  a  lawful  business 
was  an  injury  to  property,  and  his  opinion  was  adopted  by  the  Court 
of  Appeals.  (133  N.  Y.  649;  State  v.  Stewart,  59  Vt.  273;  Barry. 
Essex  Trade  Council,  30  Atl.  Rep.  881.)  A  court  of  equity  has 
jurisdiction  to  restrain  by  injunction  the  carrying  out  of  a  conspiracy 
to  destroy  or  injure  property,  and  the  court  is  not  deprived  of  its 
power  because  the  acts  are  criminal.  (Cranford  v.  Tyrrell,  128  N.  Y. 
341;  In  re  Debs,  158  U.  S.  564-593.) 

Many  of  the  acts  which,  it  is  alleged,  the  defendants  committed, 
and  threatened  to  commit,  are  not  only  violations  of  the  rights  of 
property  guaranteed  by  the  Constitution  and  the  laws  of  the  State, 
but  are  violations  of  the  criminal  laws  of  the  State.  A  conspiracy 
to  injure  a  person's  business  by  preventing  persons  from  entering 
his  employment,  by  threats  and  intimidation,  is  a  crime  at  common 
law.  (People  v.  Melvin  &  Others  —  The  Journeymen  Cordwainers' 
Case  —  Yates'  Select  Cases,  112;  s.  c,  2  Wheeler's  Crim.  Cases, 
262.  See  also,  Wright's  Crim.  Conspiracies  [1st  Am.  ed.],  chap.  3, 
and  cases  there  cited.)  Such  a  conspiracy  is  now  a  crime  by  stat- 
ute. (Penal  Code,  sec.  168.)  Some  of  the  plaintiff's  property  was 
destroyed,  his  employees  were  attacked,  and  the  persons  who  sought 
his  employment  were  threatened  and  menaced.  For  these  acts  the 
perpetrators  are  liable  in  damages,  but  they  being,  as  it  is  alleged, 
irresponsible,  a  judgment  for  damages  would  be  unavailing,  would 
not  suppress  the  wrongs,  and  would  necessitate  a  multitude  of  ac- 
tions. Besides  this  the  damages  which  arise  from  the  destruction 
of  a  business,  with  a  loss  of  contracts,  cannot  be  ascertained  even 
approximately.  In  such  cases  an  injunction  restraining  the  com- 
mission of  such  acts  is  an  appropriate  remedy.  It  is  urged  that 
there  is  no  precedent  in  this  state  which  sustains  an  injunction  in 
such  a  case.  To  this  it  may  be  answered  that  there  is  no  case  deny- 
ing the  power  of  this  court  to  grant  such  relief,  and  there  are  many 
cases  in  other  jurisdictions  where  the  exercise  of  this  power  has  been 
sustained.  (In  re  Debs,  158  U.  S.  564;  Casey  v.  Cincinnati  T.  Union, 
45  Fed.  Rep.  135;  Coeur  D'Alene  C.  &  M.  Co.  v.  Miners'  Union, 
51  id.  260;  Blindell  v.  Hagan,  54  id.  40;  affd.,  56  id.  696;  13  U.  S. 
App.  3.54;  Toledo,  A.  A.  &  N.  M.  Ry.  Co.  v.  Pennsylvania  Co.,  54 
Fed.  Rep.  730,  746;  United  States  v.  Workmen's  A.  C,  id.  994; 
Farmers'  Loan  &  Trust  Co.  v.  Northern  Pac.  R.  Co.,  60  id.  803; 
Lake  Erie  &  W.  Ry.  Co.  v.  Bailey,  61  id.  494;  United  States  v.  Alger, 


SECT.  I]  HISTORICAL   DEVELOPMENT  733 

62  id.  824;  Arthur  v.  Oaks,  63  id.  310;  s.  c,  11  C.  C.  A.  209;  United 
States  V.  Elliott,  64  id.  27;  Sherry  v.  Perkins,  147  Mass.  212;  Mur- 
dock,  Keer  &  Co.  v.  Walker,  152  Penn.  St.  595;  Wick  China  Co.  v. 
Brown,  164  id.  449;  Barr  v.  Essex  Trades  Council,  30  Atl.  Rep.  881; 
McCandless  v.  O'Brien,  2  Pittsb.  L.  J.  [n.  s.)  435;  N.  Y.,  L.  E.  & 
W.  R.  Co.  V.  Wenger,  17  Wkly.  Law  Bull.  306;  s.  c,  24  Abb.  N.  C. 
267.) 

In  Johnston  Harvester  Co.  v.  Meinhardt  (60  How.  Pr.  168;  s.  c, 
9  Abb.  N.  C.  393;  affd.,  24  Hun,  489)  an  injunction  was  refused  on 
the  ground  that  "there  is  no  fact  shown  which  would,  in  any  legal 
sense,  amount  to  an  intimidation  of  the  persons  who  arc  actually  in 
or  were  about  to  enter  the  employ  of  the  plaintiff,  and  no  facts  show- 
ing acts  of  the  defendants  which  would,  in  any  legal  sense,  amount 
to  a  coercion  of  any  such  persons." 

Reynolds  v.  Everett  (144  N.  Y.  189,  affg.  s.  c,  67  Hun,  294, 
which  affirmed  s.  c,  sub.  nom.  Rogers  v.  Everts,  17  N.  Y.  Supp.  264) 
was  brought  to  restrain  striking  cigar  makers  in  which  an  injunction 
pendente  lite  was  granted  and  continued  until  the  action  was  tried. 
On  the  trial  the  complaint  was  dismissed,  without  costs,  on  the 
ground  that  the  strike  had  ceased  and  there  was  no  occasion  for  a 
permanent  injunction  restraining  defendants,  and  also  on  the  ground 
that  the  defendants  had  committed  no  acts  of  violence  against  per- 
sons or  property,  but  had  simply  persuaded  laborers  not  to  remain 
in  the  plaintiffs'  employ  and  had  persuaded  others  not  to  enter  their 
employ. 

In  Sinsheimer  v.  United  Garment  Workers  (77  Hun,  215,  revers- 
ing s.  c,  5  Misc.  Rep.  448)  the  temporary  injunction  was  vacated 
on  the  ground  that  "there  is  no  proof  of  any  acts  of  violence  upon 
the  part  of  the  defendants  or  of  any  injury  to  property  or  of  any 
threats  or  intimidation."  The  defendants  in  that  case  had  simply 
mailed  circulars  to  the  plaintiffs'  customers  requesting  them  not  to 
deal  with  the  plaintiffs  until  the  difference  between  them  and  the 
defendants  should  be  settled. 

The  Supreme  Court  of  this  State  has  original  and  general  juris- 
diction of  all  cases  in  law  and  equity  (Const,  art.  6),  with  unlimited 
power  to  protect  the  rights  of  persons  and  property  by  adopting  and 
enforcing  all  of  the  remedies  afforded  by  an  enlightened  jurispru- 
dence which  are  not  inconsistent  with  the  Constitution  of  the  State, 
and  it  is  its  privilege  and  duty  to  mould  and  expand  its  processes  so 
as  to  afford  adequate  protection  to  the  rights  of  all  citizens.  (In  re 
Hallet's  Estate,  13  Ch.  Div.  710;  Joy  v.  St.  Louis,  138  U.  S.  50.) 
It  is  far  better  for  employers  and  employees,  and  for  the  peace  and 
safety  of  the  State,  that  such  relief  be  exercised  by  the  courts,  where 
parties  can  be  heard,  than  to  permit  such  violations  of  law  to  go 
unrestrained  until  force  is  arrayed  against  force,  and  the  strong  arm 
of  the  executive  is  compelled  to  intervene  with  troops  to  prevent 
disorder  and  the  destruction  of  property.     The  defendants  invoke 


734  THE    INJUNCTION  [CHAP.  XV 

the  general  rule  that  when  all  of  the  equities  of  a  complaint  are 
denied  in  the  answer,  an  injunction  will  not  be  granted  pendente  lite, 
or,  if  granted,  will  be  vacated.  This  rule  applies  when  the  litigants 
claim  adversely  in  respect  to  property,  or  the  right  to  do  some  act 
in  connection  therewith,  and  the  plaintiff's  asserted  right  being 
doubtful,  an  injunction  will  not  be  granted.  But  this  rule  is  not 
applicable  to  the  case  at  bar,  for  the  defendants  do  not  assert  the 
right  to  do  any  of  the  acts  which  they  are  restrained  from  doing. 
They  do  not  assert  that  they  have  a  right  to  intimidate,  by  threats 
or  by  violence,  persons  in  the  employment  of  the  plaintiff  or  those 
who  seek  his  emplo^^nent,  nor  do  they  claim  that  they  have  a  right 
to  destroy  the  plaintiff's  property,  and  it  is  only  from  doing , and 
conspiring  to  do  such  acts  that  they  are  restrained. 

The  order  should  be  affirmed,  with  costs. 

Van  Brunt,  P.  J.,  and  O'Brien,  J.,  concurred  in  result. 

Order  affirmed,  with  costs. 


Section  2.     Injunctions  against  Unnamed  Parties 

FELLOWS  V.  FELLOWS 
Court  of  Chancery  of  New  York.     1819 

4  Johns.  Chancery,  25 

Upon  the  coming  in  of  the  defendant's  answer,  Foot,  for  the  de- 
fendant, moved  to  dissolve  the  injunction  which  had  been  issued  in 
this  cause,  on  the  ground,  that  the  answer  denied  the  equity  of  the 
bill,  and  especially,  that  the  injunction  ought  to  be  dissolved  as 
against  Martin  Adsit,  Raymond  Adsit,  and  Jesse  Adsit,  who  were 
no  parties  to  the  bill,  and  who  were  enjoined  from  the  payment  of 
certain  notes  given  by  them  to  the  defendant.  He  cited  7  Ves.  257. 
Iveson  V.  Harris. 

Huntington,  contra. 

The  Chancellor.  The  doctrine  in  the  case  cited,  is  correct  and 
applicable.  "I  find,"  said  Lord  Eldon,  "the  Court  has  adhered 
very  closely  to  the  principle,  that  3^ou  cannot  have  an  injunction, 
except  against  a  party  to  the  suit.  Upon  a  review  of  all  the  cases, 
I  think  the  practice  of  granting  an  injunction  against  a  creditor,  who 
is  not  a  party,  is  wrong.  The  Court  has  no  right  to  grant  an  injunc- 
tion against  a  person  whom  they  have  not  brought,  or  attempted  to 
bring,  before  the  Court,  by  subptt'na.  I  have  no  conception,  that  it 
is  competent  to  this  Court  to  hold  a  man  bound  by  an  injunction, 
who  is  not  a  party  in  the  cause,  for  the  purpose  of  the  cause."  I 
shall,  accordingly,  dissolve  the  injunction  as  against  those  persons, 
who  were  not  made  partier  to  the  suit.    A  purchaser  was  restrained, 


SECT.  II]      INJUNCTIONS  AGAINST  UNNAMED   PARTIES  735 

in  the  case  of  Green  v.  Lowes,  (3  Bro.  217)  from  paying  the  purchase 
mone}',  on  a  bill  by  the  creditors  of  the  vendor,  but  the  purchaser 
was  made  a  party.  Order  accordingly.^ 


LORD  WELLESLEY  v.  EARL  OF  MORNINGTON 

Chancery.     1848 

11  Beavan,  181 

The  plaintiff,  having  failed  in  his  motion  to  commit  Mr.  Batley 
for  a  breach  of  the  injunction,  which  applied  to  the  Earl  only,  and 
not  to  his  agents,  now  moved  to  commit  him  for  the  contempt,  in 
being  party  and  privy  to,  and  in  aiding  and  assisting  the  breach 
of  the  injunction,  which  restrained  the  defendant,  the  Earl  of  Morn- 
ington,  from  cutting  timber,  etc.,  Batley  at  the  time  knowing  that 
these  acts  were  forbidden. 

It  was  proved  that  Batley,  who  was  the  agent  and  manager  of  the 
Earl,  from  the  time  of  granting  the  injunction  in  1846,  had  cut  trees 
and  underwood,  and  appropriated  the  produce  to  the  purposes  of 
the  Earl,  and  that  he  had  interfered  in  letting  the  property  and 
taking  fines.  All  these  acts  were  in  breach  of  the  injunction,  and 
some  of  them  had  been  done  after  Batley  had  been  served  with 
clear  and  distinct  notice  of  the  terms  of  the  injunction. 

Mr.  Roupell  and  Mr.  Heathfield,  in  support  of  the  motion.  The 
former  motion  failed  in  consequence  of  this  technical  objection: 
that  it  was  to  commit  for  a  breach  of  an  injunction  which  accidentally 
omitted  the  words  ''servants  and  agents."  The  present  motion 
is  in  a  different  form,  and  seeks  to  commit /or  the  cojitempt,  in  know- 
ingly assisting  in  a  breach  of  the  injunction. 

The  Court  will  interfere,  where  a  person,  though  not  enjoined, 
wilfully  assists  in  the  act  forbidden  by  the  Court,  as  in  Lewes  v.  Mor- 
gan, 5  Price,  42,  where  after  an  injunction  granted  against  Morgan 
from  receiving  rents,  Lewes,  the  solicitor  of  Morgan,  with  knowledge 
of  the  order,  received  them,  an  order  was  made  for  his  committal 
for  the  contempt.  .  .  . 

Mr.  Turner,  for  the  trustees,  supported  the  application,  arguing 
that  it  was  necessary  to  make  amenable  third  parties  who  were  in- 
strumental in  committing  acts  in  breach  of  the  order  and  injunction 
of  the  Court,  or  in  obstructing  its  process;  otherwise  the  judicial 
power  of  the  Court  would  be  crippled,  and  its  orders  evaded.  That 
the  Court  did  interfere  in  such  cases,  especially  in  the  instance  of 
marriages  of  wards,  where  it  committed  all  persons  concerned, 
whether  restrained  b}'^  injunction  or  not.  .  .  . 

The  Master  of  the  Rolls. 
.  Does  the  plaintiff  press  for  a  committal? 

*  Accord:  Iveson  v.  Harris,  7  Ves.  251. 


736  THE    INJUNCTION  [CHAP.  XV 

Mr.  Roupell  stated  that  it  was  not  his  desire  to  press  for  the  com- 
mittal. 

The  Master  of  the  Rolls.  By  the  forbearance  of  the  plaintiff, 
I  am  spared  the  painful  necessity  of  making  an  order.  If  the  matter 
had  been  pressed.  I  should  have  found  it  my  duty  to  commit  Mr. 
Batley  for  his  contempt  in  intermeddling  with  these  matters;  some 
of  his  acts  in  contravention  of  the  injunction  are  distinctly  proved, 
though  with  respect  to  others  there  may  be  some  shadow  of  doubt. 

Batley  in  the  position  in  which  he  was,  and  knowing  the  duty  of 
the  Earl  of  Mornington,  ought  to  have  taken  care  not  to  do  any  acts, 
in  violation  of  the  order  of  the  Court.  I  am  glad  to  be  relieved  from 
the  necessity  of  ordering  a  committal,  but  Batlej^  must  pay  the  costs 
of  the  motion.^ 


WIMPY  V.  PHINIZY 

Supreme  Court  of  Georgl\.     1881 
68  Ga.  188 

Jackson,  Chief  Justice.  The  plaintiff  in  error  was  made  to  answer 
for  contempt  of  the  chancellor,  in  Sc^tting  at  defiance  and  violating  an 
injunction  issued  against  John  J.  Hayden  and  his  agents,  employes, 
etc.,  restraining  them  from  all  interference  with  a  certain  house 
until  the  further  order  of  the  chancellor.  Wimpy,  the  plaintiff  in 
error,  was  of  counsel  for  Hayden,  and  in  court  when  the  injunction 
was  granted  at  the  suit  of  Phinizy,  and  yet  he  violated  its  commands 
by  putting  two  persons  in  possession  of  the  house.  He  sought  to 
justify  his  conduct  by  the  angwer  that  he  was  not  of  counsel  for 
Hayden  when  he  put  these  people  in  the  house,  which  he  was  en- 
joined not  to,  but  was  then  employed  by  others,  who  had  bought 
from  Hayden  before  the  injunction,  and  put  them  in  as  tenants  of 
these  purchasers.  The  chancellor  held  this  answer  insufficient,  and 
granted  an  order  requiring  Wimpy  to  turn  out  the  persons  he  had 
put  in,  or  cause  them  to  vacate  the  premises,  so  as  to  place  the  prem- 
ises in  statu  quo,  or,  in  default  thereof,  to  be  imprisoned  until  this 
was  done.    To  this  order  he  excepted. 

The  chancellor  has  the  power  to  attach  for  contempt,  and  restore 
the  premises  to  the  condition  they  were  in  at  the  time  the  injunction 
was  granted,  and  to  enforce  the  restoration  by  imprisonment.  If  he 
did  not  possess  it,  parties  and  their  counsel,  or  other  employes,  could 
defy  the  writ  and  retain  the  possession  acquired  l)y  its  defiance; 
and  such,  substantially,  is  the  ruling  of  this  court,  54  Ga.  257; 
56  lb.  98. 

Was  the  excuse  of  the  plaintiff  in  error  good.'*  Clearly  not.  He 
was  an  employe  of  Hayden  when  he  and  his  employes  were  (Mijoinc^d, 
and  he  could  not,  by  changing  his  status  and  being  employed  by 

»  See  also,  Seaward  v.  Pateraon,  [1897]  1  Ch.  545. 


SECT.  II]        INJUNCTIONS   AGAINST  UNNAMED   PARTIES  737 

others,  relieve  himself  of  the  obligation  to  obey  the  writ.  It  is  im- 
material whether  he  was  served  with  it  or  not.  He  had  knowledge 
of  it  in  open  court,  and  any  such  notice  is  amply  sufficient  to  insure 
his  obedience  or  incur  the  consequences  of  disobedience.  61  Ga. 
164. 

Besides,  the  employment  subsequently  by  the  purchasers  from 
Hayden  and  then  violating  the  injunction,  has  the  appearance  of  a 
subterfuge ' —  a  sort  of  trick  to  secure  possession  for  the  original 
client,  in  the  name  of  secondary  employes. 

Be  that  as  it  may,  no  man  enjoined  from  interference  with  prop- 
erty by  a  court  of  chancery  can  be  allowed,  by  shifting  his  position 
—  his  relation  to  the  cause,  even  innocently  of  trick  or  contrivance, 
to  do  what  he  knew  the  court  had  ordered  him  not  to  do.  And 
above  all,  no  officer  of  court  can  be  permitted  to  do  so  with  impunity; 
and  of  all  officers  of  the  court,  the  last  who  should  be  permitted  thus 
to  violate  law  are  those  who  owe  allegiance  and  fealty  peculiarly  to 
the  law,  by  their  knowledge  and  learning,  no  less  than  by  their  high 
and  honorable  vocation  of  counsellors  at  law. 

There  was  no  error  in  the  order  of  the  chancellor,  requiring  Mr. 
Wimpy  to  restore  this  property  where  he  found  it  when  he  took  pos- 
session of  it  and  wrested  it,  as  it  were,  from  the  hands  of  the  chan- 
cellor, or,  on  failure  to  do  so,  that  he  be  imprisoned  until  it  was  done. 
The  majesty  of  the  law  must  be  maintained;  its  mandates  must 
be  imphcitly  obeyed.  Code,  sees.  3237,  4216,  4218;  36  Ga.  346; 
41  lb.  446;  27  lb.  476. 

Judgment  affirmed. 


AMERICAN   STEEL   &    WIRE   CO.  v.  WIRE   DRAWERS'    & 

DIE  MAKERS'  UNIONS 

United  States  Circuit  Court,  N.  D.  Ohio.     1898 
90  Fed.  598 

Hammond,  J.  There  is  a  motion  by  Fred  Walker,  one  of  defend- 
ants, to  vacate  the  service  of  subpoena  upon  him  as  the  president 
and  chief  officer  of  the  Wire  Drawers'  &  Die  Makers'  Union  No.  3, 
and  to  dismiss  the  bill  as  to  that  union,  and  also  as  to  the  Wire 
Drawers'  &  Die  Makers'  Union  No.  1,  and  to  strike  their  names 
from  the  record,  for  the  reason  that  there  is  no  law  or  precedent  for 
suing  a  voluntary  association  by  its  name,  or  for  obtaining  juris- 
diction over  it  by  service  of  a  summons  on  one  of  its  officers.  .  .  . 

The  bill  is  unquestionably  defective,  and  there  is  an  application 
to  amend  it,  which  should  be  considered  along  with  this  motion. 
While  alleging  that  they  are  "voluntary  associations,"  the  bill  sues 
the  two  unions  as  if  they  were  suable  entities,  as  corporations  are, 
and  the  subpoena  issues  against  them  as  such.    There  is  not  an  aver- 


738  THE    INJUNCTION  [CHAP.  XV 

ment  in  the  bill  which  undertakes  to  reach  them  otherwise  than 
by  this  general  suit  against  them.  It  is  too  plain  for  am^  argument 
that  they  cannot  be  so  sued.  ...  So  that  the  bill  is  entirely  defec- 
tive as  a  suit  against  voluntary  associations.  ... 

The  amendment  that  is  asked  cures  this  defect  of  substantial  and 
specific  allegation  very  thoroughly,  but  counsel  of  the  defendants 
object  to  its  being  filed  now,  and  insist  that  the  proof  shows  that 
Gillette  is  not  the  president  of  this  Union  No.  1,  but  only  a  member 
of  the  executive  committee  of  the  Federated  Wire  Trade,  another 
and  distinct  organization,  not  sued  by  this  bill.  But,  however  that 
may  be,  the  amendment  avers  that  Gillette  is  president  of  the  Union 
No.  1  and  Walker  of  Union  No.  3,  and  now  specifically  states  that 
Cliff,  Marquardt,  Haak,  Heiden,  and  about  40  others  named  in  the 
amendment  are  members  of  these  voluntary  associations,  and  asks 
that  Gillette  and  Walker,  the  respective  presidents,  and  the  named 
members,  be  made  parties  "as  representing  said  two  voluntary  asso- 
ciations and  its  membership,  as  fully  as  if  each  member  thereof  were 
made  a  party  defendant  hereto."  It  also  avers  that  the  membership 
is  numerous,  that  all  of  them  are  not  known  to  the  plaintiffs,  and 
that  it  is  impracticable  to  make  them  all  parties  to  this  bill.  .  .  . 

And  I  may  as  well  now  dispose  of  another  objection  pertinent  here, 
as  well  as  to  the  general  defense,  though  it  has  not  been  presented 
as  an  objection  to  the  application  for  leave  to  amend  the  bill  as 
proposed.  Counsel  has  prepared  elaborate  and  useful  schedules  of 
this  small  army  of  defendants,  showing  those  who  have  answered, 
those  who  have  been  served  and  not  answered,  those  who  are  out 
of  the  jurisdiction  as  shown  by  the  proof,  those  who  have  not  been 
served  at  all,  and  about  whom  nothing  is  shown,  those  against  whom 
there  is  no  evidence  in  the  affidavits  filed,  those  "who  have  been 
seen  once  only  in  the  vicinity,"  and  those  who  have  been  seen  "more 
than  once."  By  this  process  of  cancellation  and  elimination  we  have 
a  showing  that  only  13  —  a  corporal's  guard,  comparatively  —  are 
up  for  "government  by  injunction."  All  this  would  be  very  well 
if  this  case  were  on  final  hearing,  and  the  question  were  one  of  per- 
petual injunction.  Then  such  elimination  would  be  necessary  on 
the  plainest  principles  of  equitable  remedy  and  practice.  But  not  so 
now.  It  is  premature  labor  and  consideration,  for  none  of  the  par- 
ties can  be  now  dismissed  from  the  record,  nor  should  the  prelim- 
inary injunction  be  withheld  for  any  of  the  reasons  suggested  by  the 
schedules,  as  will  presently  be  shown.  Nor  do  I  overlook  the  forcible 
argument  and  suggestion  of  counsel  that  practically,  in  a  case  like 
this,  a  preliminary  injunction  ends  the  strike.  If  you  "break  the 
strike"  by  a  preliminary  injunction,  it  is  urged,  there  is  nothing 
more  to  litigate  about.  ...  If  that  should  be  the  effect  of  a  pre- 
liminary injunction,  or  of  a  final  decree,  for  that  matter,  it  is  only 
because  the  defendants  voluntarily  will  hav(;  it  so,  and  prefer  to 
abandon  all  rightful  action  in  maintaining  their  organized  strike, 


SECT.  Il]       INJUNCTIONS   AGAINST  UNNAMED   PARTIES  739 

because  they  cannot  act  wrongfully,  or,  at  least,  cannot  do  those 
things  which  are  pronounced  wrongful  by  the  courts.  ...  It  is  an 
answer  to  the  suggestion  that  this  hearing  is,  in  effect,  the  same  as  a 
final  hearing,  because  of  such  a  result,  that  it  is  not  a  necessary  legal 
consequence  of  an  interlocutory  decree,  or  even  of  a  final  decree  for 
a  perpetual  injunction.  Under  neither  would  the  defendants  be 
required  to  abandon  a  lawfully  conducted  strike,  and,  if  they  did, 
it  would  be  voluntary,  and  a  confession  that  only  by  lawlessness 
can  a  strike  be  successfully  maintained.  The  case,  therefore,  on 
this  application,  must  be  conducted  as  an  interlocutory  proceeding, 
and  not  a  final  hearing,  as  in  all  other  cases.  And  it  is  one  of  the  fea- 
tures of  an  interlocutory  injunction  that  it  reaches  all  who  are  parties, 
whether  they  have  been  served  with  process  of  subpoena  or  not, 
whether  they  have  appeared  or  not,  whether  they  have  answered  or 
not;  and  it  binds  all  who  have  notice  of  it,  whether  they  are  parties 
or  not.  It  is  old  as  the  practice  of  injunctions  that  all  having  notice 
of  it  must  obey  it.  If  not  parties  to  the  suit,  they  aid  or  abet  those 
who  are,  if  the  injunction  be  violated  by  those  who  know  of  it.  Hence 
we  are  not,  in  an  interlocutory  proceeding,  required  to  scrutinize, 
as  on  a  final  hearing,  the  service  of  process.  It  is  always  time  enough 
when  one  violating  an  injunction  is  ruled  for  a  breach  of  it  to  inquire 
whether  there  has  been  binding  notice  on  him  or  not.  Equit}^  Rule 
10;  2  Daniell,  Ch.  Prac.  1061,  1673,  1683,  et  seq.  If  a  breach  has 
been  committed  by  a  person  who  was  not  named  in  the  writ  or  order, 
the  motion  must  be  that  he  may  be  committed  for  his  contempt  in 
knowingly  assisting  in  the  breach.  Ex  parte  Lennon,  166  U.  S.  548, 
554,  17  Sup.  Ct.  658;  Id.,  12  C.  C.  A.  134,  64  Fed.  320,  323;  Toledo, 
A.  A.  &  N.  M.  Ry.  Co.  v.  Pennsylvania  Co.,  54  Fed.  746,  750;  2 
Daniell,  Ch.  Prac.  (5th  ed.)  1685,  citing  Wellesley  v.  Mornington, 
11  Beav.  180,  181;  Seaward  v.  Paterson,  [1897]  1  Ch.  545,  cited  by 
Judge  Clark  in  the  note  to  Railroad  Co.  v.  McConnell,  82  Fed.  65, 
88.  If  the  ruling  of  Judge  Foster,  so  much  urged  by  counsel  for  de- 
fendants, in  Oxley  Stave  Co.  v.  Cooper's  International  Union,  72 
Fed.  695,  697,  can  be  taken  to  mean  that  an  injunction  cannot  bind 
persons  not  formally  parties  to  the  bill,  and  served  with  notice  of 
process,  under  any  circumstances,  it  is  contrary  to  the  foregoing 
decisions;  but  if,  however,  it  only  means  that  the  writ  will  not  issue 
directly  against  any  persons  not  named  and  formally  made  parties 
to  the  bill,  it  is  not  adverse  to  the  general  practice  on  the  subject. 
It  is  only  intended,  perhaps,  by  the  learned  judge,  to  assert  the  force 
of  the  reservation  contained  in  Equity  Rule  48,  which  regulates  our 
practice  on  this  subject,  and  which  has  always  been  understood  to 
modify  somewhat  the  general  doctrine  in  England  that  parties  not 
formally  named  as  such  in  the  bill,  or  formally  served  with  process, 
may  yet  be  bound  on  the  principle  of  representation  to  the  fullest 
extent  that  those  are  bound  who  are  their  representatives  in  the  suit. 
The  language  of  the  reservation  is  that  in  such  cases  "the  decree 


740  THE    INJUNCTION  [CHAP.  XV 

shall  be  without  prejudice  to  the  rights  and  claims  of  all  absent 
parties."  The  rule  especially  is  framed  to  allow  a  suit  to  proceed 
without  making  all  the  members  of  an  association  or  of  a  class  of 
defendants  formal  parties;  but,  while  preserving  the  right  of  the 
absent  ones  to  afterwards  litigate  for  themselves  the  same  question, 
it  does  not  prohibit  the  whole  class,  when  plaintiffs,  from  taking  the 
benefit  of  a  decree  in  favor  of  those  who  represent  them;  nor  pre- 
clude a  plaintiff,  who  has  sued  the  whole  class  by  their  representa- 
tives, from  binding  the  absent  parties  by  supplemental  proceedings 
to  bring  them  in,  when  known,  if  necessary,  and  subject  them  to  the 
decree,  when  they  have  had  that  opportunity  to  defend  against  it. 
In  cases  like  this,  of  injunction,  against  large  bodies  or  masses  of 
alleged  trespassers  upon  the  rights  of  the  plaintiff,  the  ordinary 
practice  of  granting  leave  to  make  new  parties  by  supplemental 
process,  as  occasion  may  require,  affords  adequate  redress  for  the 
plaintiff  against  any  who  are  trespassing,  in  fact,  as  active  agents  in 
the  alleged  wrongdoing;  and  by  taking  care  that  all  persons  at 
large  who  menace  his  rights  shall  have  particular  notice  of  the  in- 
junction, if  any  one  or  more  engage  in  the  forbidden  acts  after  such 
notice,  proceedings  may  be  had  for  aiding  and  abetting  in  the  breach 
which  was  forbidden  to  the  defendants.  To  this  effect  are  all  the 
authorities  above  cited.  The  equity  rule,  in  my  judgment,  was  not 
intended  to  affect  this  practice  by  its  reservation;  nor  does  Judge 
Foster,  in  the  case  cited,  intend  to  assert  that  absent  members  of  an 
association  are  not  to  be  affected  bj^  an  injunction  against  those  of 
their  associates  who  are  formal  parties  to  the  record,  so  that  they 
must  be  dismissed,  as  in  that  case,  before  final  decree,  when  not  served, 
as  a  matter  of  necessity.  Whether  parties  not  served  are  to  be  bound 
bj'  any  injunction  which  may  be  ordered  is  not  a  question  arising 
now,  but  will  arise  if  any  proceedings  should  be  taken  to  bind  them 
hereafter,  or  charge  them  with  a  breach.  The  application  to  dismiss 
the  bill  as  to  them  should  not  be  granted,  for  the  plain  reason  that 
the  plaintiff  may  yet  serve  them  with  subpoena,  or  otherwise  notify 
them,  and  seek  to  extend  the  injunction  formally  as  to  them,  or 
have  them  in  the  record  at  the  final  hearing. 

We  come  now  to  the  further  objection  to  this  amendment  that 
it  does  not  yet  contain  the  specific  allegations  necessary  in  a  bill 
to  charge  a  few  persons  as  the  representatives  of  the  many.  Equity 
Rule  48,  allowing  parties  to  be  left  out  of  the  bill  where  they  are 
too  numerous,  has  already  been  referred  to,  but  it  should  be  read 
along  with  the  series  of  rules  beginning  with  Rule  47  and  extending 
to  and  inchiding  Rule  54,  from  which  it  will  be  seen  that  the  prac- 
tice is  carefully  designed  to  regulate  such  suits  according  to  the 
kind  of  classes  which  are  sued,  ordinarily';  but  there  is  not  any 
specific  provision  for  suits  against  unincorporated  or  voluntary  as- 
sociations. And  there  does  not  seem  to  be  any  uniform  practice  in 
the  method  of  suing  such  societies.     All  that  can  be  said  is  that, 


SECT.  II]       INJUNCTIONS  AGAINST  UNNAMED   PARTIES  741 

technically,  it  is  a  suit  against  the  members  individually,  and  not 
in  solido  against  the  company,  as  in  the  case  of  incorporated  societies. 
The  chief  officers,  for  purposes  of  suits,  represent  a  corporation, 
generally,  and  they  may  so  represent  a  voluntary  association;  but 
there  is  no  technical  requirement  that  process  shall  be  served  on 
them  exclusively  or  generally,  though  by  a  natural  analogy  that 
would  be  a  convenient  method  to  adopt  in  suing  a  voluntary  associa- 
tion or  in  bringing  a  suit  for  it.  But  the  association  may,  and  often 
does,  appoint  or  select  its  own  agencies  for  bringing  its  suits,  formally 
or  informally,  by  a  selection  of  such  as,  for  the  occasion,  it  chooses 
to  adopt.  In  suits  against  it  the  plaintiff  is  left  to  get  along  as  best 
he  can  by  aid  of  the  rule  allowing  a  few  of  the  mass  to  be  selected  as 
representatives,  and  by  aid  of  the  court  in  ordering  that  the  pro- 
ceedings shall  be  conducted  according  to  the  particular  circumstances 
and  the  particular  nature  or  purpose  of  each  suit,  all  absent  parties 
not  actually  served  with  process  being  protected  by  the  modification 
contained  in  the  reservation  of  Equity  Rule  48,  already  commented 
on,  so  far  as  the  courts  of  the  United  States  are  concerned.  Mande- 
ville  V.  Riggs,  2  Pet.  482;  Beatty  v.  Kurtz,  Id.  566,  584;  Liverpool 
Ins.  Co.  V.  Massachusetts,  10  Wall.  566,  570,  574,  575;  Smith  v. 
Swormstedt,  16  How.  288,  302;  Ayres  v.  Carver,  17  How.  591; 
McArthur  v.  Scott,  113  U.  S.  340,  395,  5  Sup.  Ct.  652;  U.  S.  v.  Old 
Settlers,  148  U.  S*.  427,  480,  13  Sup.  Ct.  650;  Hotel  Co.  v.  Wade, 
97  U.  S.  13,  21;  Payne  v.  Hook,  7  Wall.  425,  431;  West  v.  Randall, 
2  Mason,  181,  Fed.  Cas.  No.  17,424  (volume  29,  p.  722);  U.  S.  v. 
Elliott,  64  Fed.  27,  35;  Oxley  Stave  Co.  v.  Coopers'  International 
Union,  72  Fed.  695,  697;  Railroad  v.  McConnell,  82  Fed.  65,  88; 
Fost.  Fed.  Prac.  sees.  45,  47,  48,  108;  Beach,  Mod.  Eq.  Prac.  sees. 
65,  66;  1  Daniell,  Ch.  Prac.  (5th  ed.)  272.  The  case  of  West  v. 
Randall,  supra,  is  a  very  full  exposition  of  the  practice  by  Mr.  Jus- 
tice Story,  who  refers  to  voluntary  associations  among  the  enumerated 
instances  where  the  court  is  satisfied  with  bringing  so  many  before 
it  as  may  be  considered  as  fairly  representing  the  right,  and,  honestly 
contesting  for  the  whole,  may  therefore  bind,  in  a  sense,  that  right, 
but  will  permit  such  parties  as  are  absent,  on  a  rehearing  or  other- 
wise, to  be  heard  more  distinctly  by  the  court,  if  desired.  Of  course, 
as  he  says,  the  principle  always  supposes  that  the  decree  can  fitly 
be  made,  as  between  the  parties  before  the  court,  without  substantial 
injury  to  third  persons.  It  is  said  in  Smith  v.  Swormstedt,  supra, 
that  care  must  be  taken  that  the  persons  brought  on  the  record 
fairly  represent  the  interest  or  right  involved,  so  that  it  may  be 
fully  and  honestly  tried ;  which  is  approvingly  repeated  by  Mr.  Chief 
Justice  Fuller  in  U.  S.  v.  Old  Settlers,  supra.  Again,  in  McArthur 
V.  Scott,  supra,  Mr.  Justice  Gray  remarks  that,  "where  a  suit  is 
by  or  against  a  few  individuals  as  representing  a  numerous  class, 
that  fact  must  be  alleged  of  record,  so  as  to  present  to  the  court 
the   question  whether   sufficient   parties  are  before  it  to   properly 


742  THE    INJUNCTION  [CHAP.  XV 

represent  the  rights  of  all."  And,  finally,  Ayres  v.  Carver,  supra, 
furnishes  an  instructive  illustration  of  the  case  where  the  parties, 
no  matter  how  numerous,  cannot  find  representation  by  a  few,  and 
where  this  practice  is  not  applicable. 

The  proposed  amendment  fully  conforms  to  the  practice  as  dis- 
plaj^ed  in  the  foregoing  cases.  From  the  very  nature  of  the  case, 
there  are  sufficient  of  the  members  of  the  unions  to  defend  this  suit, 
and  enough  to  answer  all  practical  purposes  of  the  orders  and  de- 
crees that  may  be  asked  against  them.  The  fact  of  numerous  mem- 
bership and  the  necessity  for  proceeding  against  a  few  are  stated, 
and  the  court  can  see  that  those  mentioned  fairly  represent  the 
whole.  The  fallacy  of  the  objection  made  is  in  supposing  that  the 
required  "representative"  capacity  resides  in  some  official  or  au- 
thorized representative  quality,  attaching  by  reason  of  the  action 
of  the  union  itself  in  conferring  it.  As  plaintiffs  that  might  be  re- 
quired, as  a  reading  of  the  above  cases  will  show,  but  as  defendants 
it  is  not.  It  depends  on  the  facts  in  each  case,  and  the  court  will 
regulate  that  matter  by  its  decree,  according  to  circumstances,  and 
will  insist  that  those  brought  in  shall  fairly  represent  the  whole, 
according  to  the  nature  of  the  relief  sought  and  the  peculiarities  of 
the  association.  In  a  case  of  an  organized  strike  of  laborers  it  is 
fair  enough  if  the  leaders  of  the  strike  be  brought  in  to  represent 
the  organization,  no  matter  what  their  official  relation  to  their  society 
may  be.  The  result  is  that  the  motion  to  vacate  the  service  of  the 
process  and  rule  to  show  cause  against  the  two  unions,  which  was 
reserved  at  the  hearing,  must  be  denied,  and  the  plaintiffs  have 
leave  to  file  their  amendment,  after  it  has  been  properly  verified  by 
oath.  .  .  .      Ordered  accordingly.^ 


GARRIGAN  v.  UNITED  STATES 
U.  S.  Circuit  Court  of  Appeals,  Seventh  Circuit.     1908 

163  Fed.  16 

The  plaintiff  in  error,  Daniel  Garrigan,  was  adjudged  by  the 
Circuit  Court  guilty  of  contempt,  in  the  violation  of  an  injunctional 
order  issued  by  that  court,  in  aiding  and  abetting  the  parties  en- 
joined and  interfering  with  the  business  and  employes  under  the 
protection  of  such  order,  and  the  proceedings  and  judgment  are 
brought  for  review  by  this  writ  of  error.  .  .  . 

The  injunctional  order  referred  to  ran  against  various  trade  or- 
ganizations and  individuals,  named  as  defendants  in  the  bill  filed 

1  Fedekal  Equitahle  Jurisdictio.v  over  Class  Suits.  See  1912  Equity 
Rules  Nos.  38  and  39  (220  U.  S.  Appendix,  p.  11).  Rule  No.  38  is  given  supra, 
p.  .527.  These  supersede  the  earlier  Federal  E^iuity  Rules  Nos.  48  and  47  (see 
Foster,  Federal  Practice  (4th  ed.),  vol.  3,  p.  242.')).  See  Equity  Rules  38  and  39 
interpreted  in  Supreme  Tribe  of  Ben-Hur  v.  Cauble,  255  U.  S.  356. 


SECT.  II]       INJUNCTIONS  AGAINST  UNNAMED   PARTIES  743 

by  the  Employers'  Teaming  Co.  —  the  plaintiff  in  error  not  being 
named  therein,  nor  party  of  record  in  any  form  —  and  "each  and 
every  of  the  agents  and  servants  of  the  said  defendants  and  of  each 
of  them,  and  any  and  all  other  persons  and  associations  now  or 
hereafter  aiding  or  abetting  or  confederating  or  acting  in  concert 
with  said  defendants  or  any  or  either  of  them,  in  committing  the 
acts  and  grievances  or  any  of  them  complained  of  in  said  bill  of  com- 
plaint," and  restrained  the  commission  of  various  acts,  including  the 
following:  "Hindering,  obstructing,  or  stopping  any  of  the  business 
of  the  complainant,  the  Employers'  Teaming  Co.,  in  the  maintenance, 
conduct,  management,  or  operation  of  any  of  its  business,  barns, 
stables,  horses,  wagons,  or  properties  of  anj^  kind  in  the  city  of 
Chicago.".  .  .  It  further  provided  for  service  of  the  order  upon  and 
in  respect  of  the  defendants  therein,  and  that  it  "shall  be  binding 
upon  all  of  said  defendants  and  all  other  persons  whomsoever  from 
and  after  the  time  they  severally  have  knowledge  of  the  allowance 
of  this  order." 

Before  Baker  and  Seaman,  Circuit  Judges,  and  Sanborn,  District 
Judge. 

Seaman,  Circuit  Judge.  .  .  .  The  plaintiff  in  error  was  not  a  party 
to  the  bill  filed  by  the  Employers'  Teaming  Co.  for  injunctional 
relief,  nor  a  member  of  either  of  the  associations  named  as  defend- 
ants therein,  nor  named  in  the  restraining  order  whereof  violation 
is  averred  in  these  contempt  proceedings,  and  neither  averment  nor 
proof  appears  of  his  relation  to  or  privity  with  either  of  the  parties 
enjoined,  prior  to  or  apart  from  the  alleged  acts  in  violation  and 
contempt  of  such  order.  Thus  the  proceedings  and  conviction  which 
are  brought  for  review  under  this  writ  of  error  are  distinctly  criminal 
in  their  nature,  and  reviewable  in  conformity  with  the  established 
doctrine  of  such  procedure.  Bessette  v.  W.  B.  Conkey  Co.,  194 
U.  S.  324,  326,  24  Sup.  Ct.  665,  48  L.  Ed.  997;  Matter  of  Christensen 
Engineering  Co.,  194  U.  S.  458,  459,  24  Sup.  Ct.  729,  48  L.  Ed.  1072. 
Whatever  of  confusion  appeared  in  the  authorities,  prior  to  the 
decisions  above  cited,  as  to  the  distinction  in  contempt  proceedings 
between  those  of  civil  and  criminal  nature  —  the  one  remedial  for 
the  benefit  and  enforcement  of  the  rights  of  parties  to  a  suit,  and  the 
other  to  punish  for  acts  in  contempt  of  the  power  and  dignity  of  the 
court  —  that  classification  has  become  the  settled  rule  for  testing 
the  nature  of  the  proceeding  and  reviewable  questions. 

The  proceedings  against  the  plaintiff  in  error  were  instituted  by  a 
petition  filed  by  the  Employers'  Teaming  Co.,  as  complainant  in 
the  above-mentioned  bill,  averring,  in  substance,  the  issuance  of 
the  injunctional  order  referred  to,  its  wide  publication  in  newspapers 
in  Chicago,  and  posting  conspicuously  on  all  the  wagons  of  com- 
plainant which  were  engaged  in  the  operation  described,  and  stating 
"upon  information  and  belief  that  each  of  the  persons  hereinafter 
named  as  respondents  to  this,  its  said  petition,  did  at  the  time  of  the 


744  THE    INJUNCTION  [CHAP.  XV 

commission  of  the  acts  hereinafter  complained  of  have  full  knowl- 
edge and  notice  of  the  issuance  of  said  temporary  stay  or  in  junctional 
order,  and  knew,  or  by  the  exercise  of  ordinary  intelligence  might 
have  known,  of  the  issuance  of  said  injunctional  order."  There- 
upon the  petition  charges  that  the  plaintiff  in  error  (and  numerous 
other  persons  named)  "violated  said  injunctional  order  as  aforesaid, 
at  the  time,  place,  and  in  the  manner  set  forth  in  the  affidavits  of 
Solon  W.  Baxter"  and  seven  other  persons  attached  to  and  made  a 
part  of  the  petition.  An  answer  was  filed  by  the  plaintiff  in  error, 
under  a  rule  entered  and  served  to  show  cause  why  he  should  not  be 
adjudged  guilty  of  contempt  and  after  raising  various  objections  to 
the  petition  and  proceeding,  which  denies  under  oath  commission  of 
the  several  acts  and  offenses  charged  in  the  petition  and  affidavits, 
and  denies  knowledge  or  notice  of  the  injunction,  or  violation  thereof 
"intentionally  or  otherwise."  Motion  was  made  and  denied  to  dis- 
charge the  rule  to  show  cause  upon  this  sworn  answer,  and  the  case 
proceeded  to  hearing,  with  sufficient  objections  urged  and  saved  on 
behalf  of  the  plaintiff  in  error  to  raise  the  various  propositions  on 
which  error  is  assigned. 

The  evidence  upon  which  the  conviction  rests  appears  in  a  bill  of 
exceptions,  and  consists  mainly  of  ex  parte  affidavits,  purporting  to 
be  made  by  witnesses  of  the  occurrences  in  controversy  —  with  a 
single  witness,  one  Dimick,  produced  and  testifying  in  open  court  — 
which  affidavits  were  submitted  on  behalf  of  the  parties  respectively. 
In  the  opinion  filed  by  the  trial  court  it  is  aptly  remarked  that  the 
opposing  affidavits,  "as  is  usual  in  such  controversies,  were  directly 
contradictory  of  each  other";  and  that,  in  "such  irreconcilable  con- 
flict of  testimon}^,  it  is  often  impossible  to  get  a  clue  to  the  truth." 
While  these  affidavits  concur  in  proving  a  case  of  mob  violence  dur- 
ing the  attempted  movement  of  complainant's  teams  and  wagons 
through  the  streets  of  Chicago,  and  riotous  interference  with  the 
persons  guarding  them,  those  introduced  for  the  prosecution  and  de- 
fense are  "directly  contradictory"  in  all  the  facts  bearing  upon  the 
issues  involved,  both  in  respect  of  the  conduct  of  the  parties,  col- 
lectively and  individually,  engaged  in  the  riot,  and  of  the  part  and 
conduct  of  the  plaintiff  in  error  therein.  Assuming,  without  deciding, 
that  it  was  within  the  discretion  of  the  trial  court  to  hear  the  case 
upon  such  affidavits,  instead  of  ascertaining  the  facts  from  testimony 
taken  in  open  court,  as  was  the  course  adopted  in  the  Savin  Case, 
131  U.  S.  267,  268,  9  Sup.  Ct.  699,  33  L.  Ed.  150,  and  mentioned  as 
of  course  in  Unit6d  States  v.  Shipp,  203  U.  S.  563,  575,  27  Sup.  Ct. 
165,  51  L.  Ed.  319,  the  facts  to  authorize  conviction  must  neverthe- 
less be  clearly  established,  and  the  affidavits  introduced  here  exemplify 
the  infirmity  of  such  ex  parte  means  for  the  "legal  understanding"  of 
facts  in  controversy  intended  by  the  rules  of  evidence. 

In  any  view  of  the  charges  of  contempt  and  evitlence  so  received, 
it  is  unquestionable  that  the  only  issues  of  fact  were:    (a)  Whether 


SECT.  II]       INJUNCTIONS   AGAINST  UNNAMED   PARTIES  745 

the  accused  had  knowledge  of  the  injunction;  and,  if  such  knowledge 
appeared,  whether  he  committed  acts,  either  (b)  in  aid  of  its  violation 
by  the  parties  enjoined,  or  (c)  in  plain  defiance  of  its  terms  —  and 
thus  in  contempt  of  the  authority  and  connnands  of  the  court.  As 
it  is  neither  charged  nor  proven  that  the  plaintiff  in  error  was  one  of 
the  parties  enjoined,  he  is  not  chargeable  for  breach  or  violation  of  the 
injunction,  in  the  well-recognized  sense  of  those  terms  applicable  to 
parties.  He  was  bound,  alike  with  other  members  of  the  public,  to 
observe  its  restrictions  when  known,  to  the  extent  that  he  must  not 
aid  or  abet  its  violation  by  others,  nor  set  the  known  command  of 
the  court  at  defiance,  by  interference  with  or  o])struction  of  the  admin- 
istration of  justice;  and  the  power  of  the  court  to  proceed  against 
one  so  offending  and  punish  for  the  contemptuous  conduct  is  inherent 
and  indisputable.  Seaward  v.  Paterson,  1  L.  R.  Ch.  Div.  (1897)  545, 
554,  76  Law  Times  (n.  s.),  215;  In  re  Reese,  107  Fed.  942,  47  C.  C. 
A.  87,  90.  We  believe  the  above-mentioned  distinction  in  contempt 
proceedings,  between  disobedience  of  the  injunction  by  parties  and 
privies  and  the  conduct  of  others  in  contempt  of  the  authority  and 
commands  of  the  court,  to  be  elementary,  and  the  sufficiency  of  the 
evidence  in  the  case  at  bar  to  support  conviction  must  be  tested  there- 
under. The  question  discussed  in  the  briefs,  whether  the  general 
averment  in  the  petition  that  the  plaintiff  in  error  ''violated  said  in- 
junctional  order,"  authorized  reception  of  this  evidence  to  establish 
either  class  of  contempt  relied  upon  for  conviction,  is  not  involved 
in  our  view  of  the  effect  of  the  affidavits,  incorporated  in  the  petition, 
that  they  aver  such  facts  and  furnish  notice  for  the  introduction. 
The  petition  is  plainly  defective,  however,  in  the  averments  to  charge 
the  plaintiff  in  error  with  knowledge  of  the  injunction  —  stating 
alternatively  that  he  "knew,  or  by  the  exercise  of  ordinary  intelligence 
might  have  known,  of  the  issuance"  —  but  laying  out  of  view  for 
the  present  inquiry  the  objection  raised  thereupon,  we  proceed  to 
consideration  of  the  versions  of  fact  on  which  the  finding  and  con- 
viction are  predicated,  to  ascertain  their  bearing  and  sufficiency. 

The  present  proceedings  arose  out  of  notorious  conditions  of  mob 
violence  which  attended  a  strike  in  Chicago,  known  as  the  "teamsters' 
strike,"  in  April  and  May,  1905.  We  are  not  authorized,  however, 
to  consider  upon  this  review  either  the  serious  questions,  public  or 
private,  which  were  involved,  or  the  effect  of  the  disturbances  and 
violence  upon  the  business  and  welfare  of  the  community,  as  pressed 
to  attention  in  the  argument  in  support  of  the  judgment.  The  is- 
sues to  be  determined  are  not  of  riotous  and  unlawful  conduct,  in  at- 
tack upon  the  teams  and  guards,  nor  whether  the  testimony  tends  to 
show  commissions  of  offenses  by  the  plaintiff  in  error  against  the 
state  and  public,  either  by  way  of  inciting  a  mob  to  acts  of  violence 
or  in  breaches  of  the  peace.  Such  offenses  are  not  within  the  cog- 
nizance of  the  trial  court,  and  the  judgment  cannot  rest  on  their 
commission,  however  convincing  the  proof  may  appear.     While  the 


746  THE    INJUNCTION  [CHAP.  XV 

"contempt  proceeding  is  sui  generis,''^  it  is  distinctly  criminal  in  its 
nature  (Bessette  v.  W.  B.  Conkey  Co.,  supra),  and  the  accused  is 
clearly  entitled  to  the  benefits  of  the  common-law  presumption  of 
innocence,  with  its  strict  requirement  of  proof  for  conviction,  al- 
though the  pleadings  may  not  be  subj'^ct  to  the  technical  rules  of 
the  criminal  law. 

Taking  up  the  affidavits  introduced  in  support  of  the  charges  of 
contempt,  they  plainly  state  a  vicious  attack  upon  two  teams  of  the 
complainant  and  the  persons  attending  as  guards,  by  a  mob  and  in- 
dividuals named,  for  the  manifest  object  of  obstructing  the  teams 
and  injuring  the  guards.  They  identify  the  plaintiff  in  error  as  one 
of  the  assailants  "in  the  uniform  of  a  city  fireman,"  and  state:  That 
he  was  following  up  the  teams  and  guards,  in  their  passage  through 
the  street;  that  he  was  observed  "throwing  stones  at  the  colored  men 
guarding  the  teams,"  was  swearing  at  the  guards,  "calling  vile 
names,"  and  cried  out  to  the  crowd,  to  "hang  the  damned  niggers"; 
and  that  he  ultimately  assaulted  and  struck  one  of  the  guards,  after 
such  guard  was  arrested  by  the  city  police  force,  was  in  their  custody 
and  either  in  a  police  wagon  or  "getting  into  it."  The  single  witness, 
Dimick,  called  to  testify  upon  the  hearing,  states  onty  the  last- 
mentioned  assault  upon  the  guard  so  arrested  and  in  custody  in  the 
police  wagon.  These  versions  of  fact,  in  substance  —  without  a 
fact  stated  to  connect  the  mob  violence  or  individual  attacks  with 
parties  named  in  the  injunction,  either  as  associations  or  individuals, 
or  with  express  defiance  of  such  injunction,  and  with  no  proof  tend- 
ing to  show  knowledge  of  the  injunction  or  intent  to  defy  its  com- 
mands, aside  from  the  alleged  publications  of  the  order  in  the  public 
press  and  notices  thereof  borne  upon  the  wagons  thus  interfered  with 
—  constitute  the  evidence  upon  which  the  plaintiff  in  error  is  ad- 
judged guilty  of  contempt.  On  the  part  of  the  plaintiff  in  error,  his 
presence  when  the  conflict  occurred  is  admitted,  but  his  testimony 
is  specific  in  denial  of  every  act  of  violence  or  participation  above 
mentioned,  and  he  states,  in  substance,  that  his  only  part  in  the  dis- 
turbance was  to  assist  "the  police  to  protect  life  and  property,"  and 
that  he  did  so  assist  in  quelling  the  riot  and  arresting  rioters,  in  con- 
formity with  his  understanding  of  his  duty,  as  one  of  the  city  firemen. 
This  version  is  supported  by  several  affidavits,  by  policemen  and 
other  witnesses,  and  subsecjuent  proceedings  in  the  criminal  coiu't 
were  introduced  by  way  of  corroboration.  Further  statements  by 
these  affiants,  in  reference  to  the  conduct  of  persons  acting  as  guards, 
are  deemed  immaterial  in  any  view  of  the  issues. 

With  the  stories  thus  contradictory  as  to  the  participation  and  con- 
duct of  the  plaintiff  in  error,  we  are  impressed  with  the  view  in- 
dicated in  the  opinion  of  the  trial  court  that  it  is  difficult,  to  say  the 
least,  to  ascertain  the  true  version;  but  solution  thereof  is  not  in- 
volved here  as  a  reviewable  question.  The  findings  by  the  court 
stated  in  the  judgment  are  in  general  terms,  in  effect,  that  plaintiff 


SECT.  II]       INJUNCTIONS  AGAINST  UNNAMED   PARTIES  747 

in  error,  (a)  with  full  knowledge  of  the  injunction,  (b)  did  willfully 
and  in  violation  of  its  terms  interfere  with,  "and  aid  and  abet  the 
defendants,  or  some  of  them,  to  said  bill,"  in  interfering  with  "the 
business  of  said  the  Employers'  Teaming  Co."  and  its  employes  and 
agents  engaged  therein,  and  (c)  that  he  "has  failed  to  show  cause  why 
he  should  not  be  attached  and  punished  as  for  contempt."  While  we 
are  not  at  liberty  to  refer  to  the  opinion  of  the  court  for  other  or 
specific  findings  of  fact,  we  assume  for  the  purposes  of  the  present 
inquiry  that  the  above-mentioned  statements  of  fact  by  the  witnesses 
for  the  prosecution  are  adopted  by  the  finding  as  the  true  version, 
and  thus  made  conclusive  here  for  the  purposes  of  review;  and  it  is 
further  assumed  that  the  deductions  in  the  findings,  as  stated,  amount 
to  a  finding  of  both  of  the  classes  of  contempt  above  defined,  namely, 
aiding  and  abetting  violation  of  the  injunction  by  a  party,  and  con- 
temptuous interference  as  an  outsider.  Thereupon,  the  question  is 
presented  whether  these  deductions  are  sustained  by  proof. 

We  are  of  opinion  that  each  of  the  findings  is  unsupported  in  any 
admissible  view  of  the  facts  so  established.  The  finding  that  the  plain- 
tiff in  error  had  "full  knowledge  of  the  injunction"  —  a  fundamental 
requisite  for  either  charge  of  contempt  —  rests  alone  on  the  alleged 
publicity  of  the  issuance,  through  newspapers  and  notices  thereof 
which  were  posted  on  the  wagons  intercepted  by  the  mob.  No  testi- 
mony appears  of  word  or  action  on  the  part  of  the  plaintiff  in  error, 
or  in  his  hearing,  in  reference  to  the  injunction;  nor  that  his  atten- 
tion was  directed  to  the  wagons,  their  contents,  or  an}^  notices  there- 
on. He  is  clearly  entitled  to  the  benefit  of  "the  presumption  of 
innocence,  as  evidence  in  favor  of  the  accused,  introduced  by  the  law 
in  his  behalf"  (Coffin  v.  United  States,  156  U.  S.  432,  458,  460,  15 
Sup.  Ct.  394,  39  L.  Ed.  481,  reaffirmed  in  the  recent  opinion  of  this 
court  in  Dalton  v.  United  States,  154  Fed.  461,  83  C.  C.  A.  317), 
which  arises  alike  in  respect  of  notice  and  conduct,  as  "an  instru- 
ment of  proof  created  in  his  favor";  and  the  mere  inference  of  "full 
knowledge,"  derived  solely  from  the  above-mentioned  facts,  is  with- 
out force,  as  we  believe,  to  overcome  the  express  denial  of  knowledge 
on  the  part  of  the  accused,  fortified  by  the  presumption  thus  defined. 
The  finding  of  such  knowledge  therefore  is  unsupported  by  the  need- 
ful proof  to  authorize  conviction  and  cannot  be  upheld  under  the 
foregoing  view.  So  the  question  whether  the  insufficient  averment 
thereof  in  the  petition  constitutes  reviewable  error  does  not  require 
solution. 

Upon  these  promises  therefore,  that  knowledge  of  the  injunction 
is  unproven,  and  that  no  proof  appears  that  the  plaintiff  in  error  was 
engaged  by  or  with  any  person  or  association  enjoined  in  its  viola- 
tion, we  are  of  opinion  that  the  evidence  fails  to  establish  cause  for 
his  conviction  of  contempt  of  court,  within  either  of  the  classes  found 
and  adjudged  against  him.  The  misconduct  stated  by  the  witnesses 
for  the  prosecution  —  in  assailing  and  abusing  the  guards,  who  were 


748  THE    INJUNCTION  [CHAP.  XV 

protecting  the  movement  of  the  teams,  and  inciting  the  mob  to  hke 
interference  —  however  criminal  in  its  nature  and  disturbing  in  pur- 
pose and  effect,  thus  standing  alone,  does  not  constitute  contempt 
within  either  definition  of  such  offense.  Willful  defiance  and  con- 
tempt of  the  authority  and  order  of  the  court  cannot  be  intended 
or  committed  without  information  that  such  authority  has  been 
exercised  in  the  issuance  of  an  injunction  protecting  the  movement 
and  services  thus  interfered  with.  Nor  is  the  alleged  misconduct 
brought  within  the  finding  of  violation  of  the  order,  in  aiding  or 
abetting  "the  defendants,  or  some  of  them,  to  said  bill  of  complaint, 
in  committing  the  acts  and  grievances  complained  of,"  for  the  further 
reason  that  it  does  not  appear  in  evidence  that  any  such  parties  were 
engaged  in  the  attack,  directly  or  indirectly.  In  reference  to  the 
alleged  subsequent  assault  upon  one  of  the  guards,  when  such  guard 
was  under  arrest  and  in  the  custody  of  the  police  authorities,  we  deem 
it  sufficient  to  remark  that  the  guard  was  not  then  serving  as  escort, 
and  any  offense  then  committed  was  against  the  dignity  of  the  state, 
and  not  that  of  the  court  issuing  the  injunction. 

For  want  of  evidence  that  the  plaintiff  in  error  was  guilty  of  con- 
tempt of  court  in  his  alleged  misconduct,  the  judgment  of  the  Circuit 
Court  is  reversed,  with  direction  to  discharge  the  rule  against  the 
plaintiff  in  error.^ 

JONES  V.  MAKER 

Supreme  Court  of  New  York.     1909 
62  Misc.  388 
See  supra,  p.  638,  for  a  report  of  the  case. 


FARMERS'    LOAN   &   TRUST   CO.  v.  NORTHERN   PACIFIC 

RAILROAD  CO. 

United  States  Circuit  Court,  E.  D.  Wisconsin.     1894 

60  Fed.  803 

This  was  a  petition  presented  by  Thomas  F.  Oakes,  Henry  C. 
Payne,  and  Henry  C.  Rouse,  who  were  appointed  receivers  of  the 
property  of  the  Northern  Pacific  Railroad,  in  a  suit  brought  against 
that  company  and  others  by  the  Farmers'  Loan  &  Trust  Co.,  setting 
forth  that  their  employes  are  contemplating  a  strike  for  the  purpose 
of  preventing  a  proposed  reduction  of  wages,  and  praying  that  they 
be  enjoined  therefrom.  There  was  also  a  supplemental  petition  repre- 
senting that  the  threatened  strike  would  be  ordered  by  the  executive 
heads  of  the  various  organizations  of  railway  employes,  and  praying 

'  A  petition  for  a  writ  of  certiorari  was  denied  by  the  U.  S.  Supreme  Court, 
214  U.  S.  514. 

Accord:  United  States  v.  Agler,  62  Fed.  824,  827. 


I 


SECT.  II]       INJUNCTIONS   AGAINST  UNNAMED   PARTIES  749 

an  injunction  against  thorn,  their  agents,  and  various  other  parties. 
Injunctions  were  accordingly  granted,  and  the  case  is  now  heard  on 
motion  of  the  officers  of  these  organizations  to  modify  the  same  by 
striking  out  certain  portions  specially  objected  to. 

Jenkins,  Circuit  Judge.  .  .  .  The  writ  in  question  was  directed 
to  the  officers,  agents,  and  employes  of  the  receivers,  engineers,  fire- 
men, trainmen,  train  dispatchers,  telegraphers,  conductors,  switch- 
men, and  all  other  employes  of  the  receivers,  and  to  all  persons, 
associations,  and  combinations,  voluntary  or  otherwise,  whether  em- 
ployes of  said  receivers  or  not,  and  to  all  persons  generally.  The  re- 
straining clause  of  the  writ  is  as  follows : 

"Now,  therefore,  in  consideration  thereof,  and  of  the  matters  in  said  peti- 
tion set  forth,  you,  the  officers,  agents,  and  employes  of  Thomas  F.  Oakes, 
Henry  C.  Payne,  and  Henry  C.  Rouse,  as  receivers  of  the  Northern  Pacific 
Railroad  Co.,  and  the  engineers,  firemen,  trainmen,  train  dispatcliers,  teleg- 
raphers, conductors,  switchmen,  and  all  other  employes  of  said  Thomas 
F.  Oakes,  Henry  C.  Payne,  and  Henry  C.  Rouse,  as  receivers  of  the  Northern 
Pacific  Railroad  Co.,  and  each  and  every  one  of  3'ou,  and  all  persons,  asso- 
ciations, and  combinations,  voluntary  or  otherwise,  whether  employes  of 
said  receivers  or  not,  and  all  persons  generally,  and  each  and  every  one  of 
you,  in  the  penalty  which  may  ensue,  are  hereby  charged  and  commanded 
that  you,  and  each  and  every  one  of  j^ou,  do  absolutely  desist  and  refrain 
from  disabling  or  rendering  in  any  wise  unfit  for  convenient  and  immediate 
use  anj^  engines,  cars,  or  other  propert}'  of  Thomas  F.  Oakes,  Henry  C. 
Payne,  and  Henry  C.  Rouse,  as  receivers  for  the  Northern  Pacific  Railroad 
Co.,  and  from  interfering  in  any  manner  with  the  pos.session  of  locomotives, 
cars,  or  property  of  the  said  receivers,  or  in  their  custod.y,  and  from  inter- 
fering in  any  manner,  by  force,  threats,  or  otherwise,  with  men  who  desire 
to  continue  in  the  service  of  the  said  receivers,  and  from  interfering  in  any 
manner,  by  force,  threat,  or  otherwise,  with  men  employed  by  the  said 
receivers  to  take  the  place  of  those  who  quit  the  service  of  said  receivers,  or 
from  interfering  with  or  obstructing  in  any  wise  the  operation  of  the  rail- 
road, or  any  portion  thereof,  or  the  running  of  engines  and  trains  thereon 
and  thereover,  as  usual,  and  from  any  interference  with  the  telegraph  lines 
of  said  receivers  or  along  the  lines  of  railways  operated  by  said  receivers, 
or  the  operation  thereof,  and  from  combining  and  conspiring  to  quit,  with 
or  without  notice,  the  service  of  said  receivers,  with  the  object  and  intent  of  crip- 
pling the  property  in  their  custody,  or  embarrassing  the  operation  of  said  rail- 
road, and  from  so  quitting  the  service  of  the  said  receivers,  with  or  ivithmd  notice, 
as  to  cripple  the  property,  or  to  prevent  or  hinder  the  operation  of  said  railroad, 
and  generally  from  interfering  with  the  oflficers  and  agents  of  said  receivers, 
or  their  employes,  in  any  manner,  bj'  actual  violence,  or  bj'  intimidation, 
threats,  or  otherwise,  in  the  full  and  complete  possession  and  management 
of  the  said  railroad,  and  of  all  the  property  thereunto  pertaining,  and  from 
interfering  with  any  and  all  property  in  the  custody  of  the  said  receivers, 
whether  belonging  to  the  receivers  or  shippers  or  other  owners,  and  from 
interfering,  intimidating,  or  otherwise  injuring  or  inconveniencing  or  delay- 
ing the  passengers  being  transported  or  about  to  be  transported  over  the 
railway  of  said  receivers,  or  any  portion  thereof,  by  said  receivers,  or  by  in- 
terfering in  any  manner  by  actual  violence  or  threat,  and  otherwise  prevent- 


750  THE    INJUNCTION  [CHAP.  XV 

ing  or  endeavoring  to  prevent  the  shipment  of  freight  or  the  transportation 
of  the  mails  of  the  United  States  over  the  road  operated  bj'  said  receivers, 
until  the  further  order  of  this  court." 

If  the  combination  and  conspiracy  alleged,  and  the  acts  threat- 
ened to  be  done  in  pursuance  thereof,  are  unlawful,  it  cannot,  I 
think,   be  successfully  denied  that  restraint  by  injunction  is  the 
appropriate  remedy.     It  may  be  true  that  a  right  of  action  at  law 
would  arise  upon  consummation  of  the  threatened  injury,  but  mani- 
festly such  remedy  would  be  inadequate.     The  threatened  inter- 
ference with  the  operations  of  the  railwaj',  if  carried  into  effect, 
would  result  in  paralysis  of  its  business,  stopping  the  commerce 
ebbing  and  flowing  through  seven  states  of  the  Union,  working  in- 
calculable injury  to  the  property,  and  causing  great  public  privation. 
Pecuniary  compensation  would  be  wholly  inadequate.     The  injury 
would  be  irreparable.    Compensation  could  be  obtained  only  through 
a  multiplicity  of  suits  against  12,000  men,  scattered  along  the  line 
of  this  railway  for  a  distance  of  4400  miles.    It  is  the  peculiar  func- 
tion of  equity  in  such  case,  where  the  injury  would  result  not  alone  in 
severe  private,  but  in  great  public,  wrong,  to  restrain  the  commis- 
sion of  the  threatened  acts,  and  not  to  send  a  party  to  seek  uncertain 
and  inadequate  remedy  at  law.    That  jurisdiction  rests  upon  settled 
and  unassailable  ground.    It  is  not  longer  open  to  controversy  that 
a  court  of  equity  may  restrain  threatened  trespass  involving  the  im- 
mediate or  ultimate  destruction  of  property,   working  irreparable 
injury,  and  for  which  there  would  be  no  adequate  compensation  at 
law.    It  will,  in  extreme  cases,  where  the  peril  is  imminent,  and  the 
danger  great,   issue  mandatory  injunctions  requiring  a  particular 
service  to  be  performed,  or  a  particular  direction  to  be  given,  or  a 
particular  order  to  be  revoked,  in  prevention  of  a  threatened  trespass 
upon  property  or  upon  public  rights.    I  need  not  enlarge  upon  this 
subject.     The  jurisdiction  is  beyond  question,  is  plenary  and  com- 
prehensive.    Some  of  the  authorities  are  assembled  by  Judge  Taft 
in  the  case  of  Toledo,  etc.,  R.  Co.  v.  Pennsylvania  Co.,  54  Fed.  730,  — 
a  case  in  which  the  court  restrained  Mr.  Arthur,  chief  of  the  Brother- 
hood of  Locomotive  Engineers,  from  giving  the  order  and  signal  for 
a  strike  which  was  intended  to  result  in  injury  to  the  complainant's 
rights.    See  also,  Blindell  v.  Hagan,  54  Fed.  40,  affirmed  on  appeal 
6  C.  C.  A.  86,  56  Fed.  696;  Coeur  d'Alene  Consolidated  &  Min.  Co. 
V.  Miners'  Union,  51  Fed.  260.     It  would  be  anomalous,  indeed,  if 
the  court,  holding  this  property  in  possession  in  trust,  could  not 
protect  it  from   injury,   and  could  not  restrain  interference  whicii 
would  render  abortive  all  efforts  to  perform  the  public  duties  charged 
.  upon  this  railway.^  ... 

'  The  Court  further  said  (p.  821) :  "  It  is  idle  to  talk  of  a  peaceable  strike.  None 
such  frv'er  occurred.  The  suggestion  is  impeachment  of  intelligence.  From  first 
to  last,  from  the  earliest  recorded  strike  to  that  in  the  state  of  West  Virginia, 


i 


SECT.  Ill]  ''government  BY   INJUNCTION"  751 


Section  3.     '^Government  by  Injunction'^  ^ 

IN  RE  DEBS 

Supreme  Court  of  the  United  States.     1895 

158  U.  S.  564 

[The  facts  of  the  case  will  be  found  on  pp.  138  et  seq.,  supra.] 
[In  order  to  prevent  the  American  Railway  Union  from  paralyzing 
the  entire  railway  service  of  the  country  by  the  enforcement  of  its 
boycott  against  the  Pullman  Palace  Car  Co.  in  support  of  certain 
union  employes  striking  against  the  latter  company,  the  Circuit  Court 
of  the  United  States  for  the  Northern  District  of  Illinois  issued  an  in- 
junction commanding  the  defendants,  officers  of  the  American  Railway 
Union,]  "and  all  persons  combining  and  conspiring  with  them,  and  all 
other  persons  whomsoever,  absolutely  to  desist  and  refrain  from  in 
any  way  or  manner  interfering  with,  hindering,  obstructing  or  stopping 
any  of  the  business  of  any  of  the  following  named  railroads,"  (spe- 
cifically naming  the  various  roads  named  in  the  bill,)  "as  common 
carriers  of  passengers  and  freight  between  or  among  any  States  of 
the  United  States,  and  from  in  any  way  or  manner  interfering  with, 
hindering,  obstructing  or  stopping  any  mail  trains,  express  trains  or 
other  trains,  whether  freight  or  passenger,  engaged  in  interstate 
commerce,  or  carrying  passengers  or  freight  between  or  among  the 
States;  and  from  in  any  manner  interfering  with,  hindering  or  stop- 
ping any  trains  carrying  the  mail;  and  from  in  any  manner  inter- 
fering with,  hindering,  obstructing  or  stopping  any  engines,  cars  or 
rolling  stock  of  any  of  said  companies  engaged  in  interstate  com- 
merce, or  in  connection  with  the  carriage  of  passengers  or  freight 
between  or  among  the  States;  and  from  in  any  manner  interfering 
with,  injuring  or  destroying  any  of  the  property  of  any  of  said  rail- 
roads engaged  in  or  for  the  purpose  of,  or  in  connection  with,  interstate 
commerce  or  the  carriage  of  the  mails  of  the  United  States  or  the 
transportation  of  passengers  or  freight  between  or  among  the  States ; 
and  from  entering  upon  the  grounds  or  premises  of  any  of  said  rail- 
roads for  the  purpose  of  interfering  with,  hindering,  obstructing,  or 

which  proceeded  simultaneously  with  the  argument  of  this  motion,  to  that  at 
Connellsville,  Pa.,  occurring  as  I  write,  force  and  turbulence,  violence  and  out- 
rage, arson  and  murder,  have  been  associated  with  the  strike  as  its  natural  and 
inevitable  concomitants.  No  strike  can  be  effective  without  compulsion  and 
force.  That  compulsion  can  come  only  through  intimidation.  A  strike  without 
violence  would  equal  the  representation  of  the  tragedy  of  Hamlet  with  the  part 
of  Hamlet  omitted." 

The  motion  to  modify  the  injunction  was,  except  in  one  comparatively  unim- 
portant particular,  denied. 

For  further  proceedings  in  relation  to  this  injunction,  see  Arthur  v.  Oakes, 
63  Fed.  310,  infra,  p.  782. 
•  See  references  in  note  1,  p.  717,  supra. 


752  THE    INJUNCTION  [CHAP.  XV 

stopping  any  of  sai(f  mail  trains,  passenger  or  freight  trains  engaged 
in  interstate  commerce,  or  in  the  transportation  of  passengers  or 
freight  between  or  among  the  States,  or  for  the  purpose  of  interfer- 
ing with,  injuring,  or  destroying  any  of  said  property  so  engaged  in 
or  used  in  connection  with  interstate  commerce  or  the  transporta- 
tion of  passengers  or  property  between  or  among  the  States;  and 
from  injuring  or  destroying  any  part  of  the  tracks,  roadbed,  or  road, 
or  permanent  structures  of  said  railroads;  and  from  injuring,  de- 
stroying, or  in  an}'  way  interfering  with  any  of  the  signals  or  switches 
of  anj'  of  said  railroads;  and  from  displacing  or  extinguishing  any 
of  the  signals  of  any  of  said  railroads,  and  from  spiking,  locking,  or 
in  any  manner  fastening  any  of  the  switches  of  any  of  said  railroads, 
and  from  uncoupling  or  in  any  way  hampering  or  obstructing  the 
control  by  an}'  of  said  railroads  of  any  of  the  cars,  engines,  or  parts 
of  trains  of  any  of  said  railroads  engaged  in  interstate  commerce  or 
in  the  transportation  of  passengers  or  freight  between  or  among 
the  States,  or  engaged  in  carrying  any  of  the  mails  of  the  United 
States;  and  from  compelling  or  inducing  or  attempting  to  compel 
or  induce,  by  threats,  intimidation,  persuasion,  force,  or  violence, 
any  of  the  employes  of  any  of  said  railroads  to  refuse  or  fail  to  per- 
form any  of  their  duties  as  emploj'es  of  any  of  said  railroads  in  con- 
nection with  the  interstate  business  or  commerce  of  such  railroads 
or  the  carriage  of  the  United  States  mail  by  such  railroads,  or  the 
transportation  of  passengers  or  property  between  or  among  the 
States ;  and  from  compelling  or  inducing  or  attempting  to  compel  or 
induce  by  threats,  intimidation,  force,  or  violence  any  of  the  em- 
ploj^es  of  any  said  railroads  who  are  employed  by  such  railroads, 
and  engaged  in  its  service  in  the  conduct  of  interstate  business  or 
in  the  operation  of  any  of  its  trains  carrying  the  mail  of  the  United 
States,  or  doing  interstate  business,  or  the  transportation  of  pas- 
sengers and  freight  between  and  among  the  States,  to  leave  the  serv- 
ice of  such  railroads;  and  from  preventing  any  person  whatever,  by 
threats,  intimidation,  force,  or  violence  from  entering  the  service  of 
any  of  said  railroads  and  doing  the  work  thereof,  in  the  carrying  of 
the  mails  of  the  United  States,  or  the  transportation  of  passengers 
and  freight  between  or  among  the  States;  and  from  doing  any  act 
whatever  in  furtherance  of  any  conspiracy  or  combination  to  re- 
strain either  of  said  railroad  companies  or  receivers  in  the  free  and 
unhindered  control  and  handling  of  interstate  commerce  over  the 
lines  of  said  railroads,  and  of  transportation  of  persons  and  freight 
between  and  among  the  States;  and  from  ordering,  directing,  aiding, 
assisting,  or  abetting  in  any  manner  whatever,  any  person  or  persons 
to  commit  any  or  either  of  the  acts  aforesaid. 

"And  it  is  further  ordered  that  the  aft)resaid  injunction  and  writ 
of  injunction  shall  be  in  force  and  binding  upon  sucli  of  said  defend- 
ants as  are  named  in  said  bill  from  and  after  the  service  upon  them 
severally  of  said  writ  by  delivering  to  them  severally  a  copy  of  said 


SECT.  Ill]  "government  BY   INJUNCTION"  753 

writ  or  by  reading  the  same  to  them  and  the  service  upon  them  re- 
spectively of  the  writ  of  su})poena  herein,  and  shall  be  binding  upon 
said  defendants,  whose  names  are  alleged  to  be  unknown,  from  and 
after  the  service  of  such  writ  upon  them  respectively  by  the  read- 
ing of  the  same  to  them  or  by  the  publication  thereof  by  posting  or 
printing,  and  after  service  of  subpa^na  upon  any  of  said  defendants 
named  herein  shall  be  binding  upon  said  defendants  and  upon  all 
other  persons  whatsoever  who  are  not  named  her(Mn  from  and  after 
the  time  when  they  shall  severally  have  knowledge  of  the  entry  of 
such  order  and  the  existence  of  said  injunction."  .  .  . 

Mr.  Justice  Brewer,  after  stating  the  case,  delivered  the  opinion 
of  the  court. 

The  case  presented  by  the  bill  is  this:  The  United  States,  finding 
that  the  interstate  transportation  of  persons  and  property,  as  well 
as  the  carriage  of  the  mails,  is  forcibly  obstructed,  and  that  a  com- 
bination and  conspiracy  exists  to  subject  the  control  of  such  trans- 
portation to  the  will  of  the  conspirators,  applied  to  one  of  their  courts, 
sitting  as  a  court  of  equity,  for  an  injunction  to  restrain  such  obstruc- 
tion and  prevent  carrying  into  effect  such  conspiracy.  Two  questions 
of  importance  are  presented :  First.  Are  the  relations  of  the  general 
government  to  interstate  commerce  and  the  transportation  of  the 
mails  such  as  authorize  a  direct  interference  to  prevent  a  forcible 
obstruction  thereof.'  '  Second.  If  authority  exists,  as  authority  in 
governmental  affairs  implies  both  power  and  duty,  has  a  court  of 
equity  jurisdiction  to  issue  an  injunction  in  aid  of  the  performance 
of  such  dut}^?  .  .  . 

It  is  objected  that  it  is  outside  of  the  jurisdiction  of  a  co\u-t  of 
equity  to  enjoin  the  commission  of  crimes.  This,  as  a  general  prop- 
osition, is  unquestioned.  A  chancellor  has  no  criminal  jurisdiction. 
Something  more  than  the  threatened  commission  of  an  offence  against 
the  laws  of  the  land  is  necessary  to  call  into  exercise  the  injunctive 
powers  of  the  court.  There  must  be  some  interferences,  actual  or 
threatened,  with  property  or  rights  of  a  pecuniary  nature,  but  when 
such  interferences  appear  the  jurisdiction  of  a  court  of  equity  arises, 
and  is  not  destroyed  by  the  fact  that  they  are  accompanied  by  or 
are  themselves  violations  of  the  criminal  law.  .  .  . 

The  law  is  full  of  instances  in  which  the  same  act  may  give  rise 
to  a  civil  action  and  a  criminal  prosecution.  An  assault  with  intent 
to  kill  may  be  punished  criminally,  under  an  indictment  therefor, 
or  will  support  a  civil  action  for  damages,  and  the  same  is  true  of 
all  other  offences  which  cause  injury  to  person  or  property.  In  such 
cases  the  jurisdiction  of  the  civil  court  is  invoked,  not  to  enforce 
the  criminal  law  and  punish  the  wrongdoer,  but  to  compensate  the 
injured  party  for  the  damages  which  he  or  his  property  has  suffered, 
and  it  is  no  defence  to  the  civil  action  that  the  same  act  by  the  de- 

1  Only  that  part  of  the  opinion  dealing  with  the  second  of  these  two  questions 
is  given.  —  Ed. 


754  THE    INJUNCTION  [CHAP.  XV 

fendant  exposes  him  also  to  indictment  and  punishment  in  a  court 
of  criminal  jurisdiction.  So  here,  the  acts  of  the  defendants  may 
or  may  not  have  been  violations  of  the  criminal  law.  If  they  were, 
that  matter  is  for  inquiry  in  other  proceedings.  The  complaint 
made  against  them  in  this  is  of  disobedience  to  an  order  of  a  civil 
court,  made  for  the  protection  of  property  and  the  security  of  rights. 
If  any  criminal  prosecution  be  brought  against  them  for  the  criminal 
offences  alleged  in  the  bill  of  complaint,  of  derailing  and  wrecking 
engines  and  trains,  assaulting  and  disabling  employes  of  the  rail- 
road companies,  it  will  be  no  defence  to  such  prosecution  that  they 
disobeyed  the  orders  of  injunction  served  upon  them  and  have  been 
punished  for  such  disobedience. 

Nor  is  there  in  this  any  invasion  of  the  constitutional  right  of  trial 
by  jury.    We  fully  agree  with  counsel  that  "it  matters  not  what  form 
the  attempt  to  deny  constitutional  right  may  take.     It  is  vain  and 
ineffectual,  and  must  be  so  declared  b}^  the  courts,"  and  we  reaffirm 
the  declaration  made  for  the  court  bj^  Mr.  Justice  Bradley  in  Boyd 
V.  United  States,  116  U.  S.  616,  635,  that  "it  is  the  duty  of  courts 
to  be  watchful  for  the  constitutional  rights  of  the  citizen,  and  against 
any  stealthy  encroachments  thereon.     Their  motto  should  be  ohsta 
principiis."    But  the  power  of  a  court  to  make  an  order  carries  with 
it  the  equal  power  to  punish  for  a  disobedience  of  that  order,  and 
the  inquiry  as  to  the  question  of  disobedience  has  been,  from  time 
immemorial,  the  special  function  of  the  court.    And  this  is  no  tech- 
nical rule.    In  order  that  a  court  may  compel  obedience  to  its  orders 
it  must  have  the  right  to  inquire  whether  there  has  been  any  dis- 
obedience thereof.     To  submit  the  question  of  disobedience  to  an- 
other tribunal,  be  it  a  jury  or  another  court,  would  operate  to  deprive 
the  proceeding  of  half  its  efficiency.  ...     In  Watson  v.  Williams, 
36  Miss.  331,  341,  it  was  said:   "The  power  to  fine  and  imprison  for 
contempt,  from  the  earliest  history  of  jurisprudence,  has  been  re- 
garded as  a  necessary  incident  and  attribute  of  a  court,  without 
which  it  could  no  more  exist  than  without  a  judge.     It  is  a  power 
inherent  in  all  courts  of  record,  and  coexisting  with  them  by  the  wise 
provisions  of  the  common  law.    A  court  without  the  power  effectually 
to  protect  itself  against  the  assaults  of  the  lawless,  or  to  enforce  its 
orders,  judgments,  or  decrees  against  the  recusant  parties  before  it, 
would  be  a  disgrace  to  the  legislation,  and  a  stigma  upon  the  age 
which  invented  it."    In  Cartwright's  Case,  114  Mass.  230,  238,  we 
find  this  language:   "The  summary  power  to  commit  and  punish  for 
contempts  tending  to  obstruct  or  degrade  the  administration   of 
justice  is  inherent  in  courts  of  chancery  and  other  superior  courts, 
as  essential  to  the  execution  of  their  powers  and  to  the  maintenance 
of  their  authority,  and  is  part  of  the  law  of  the  land,  within  the  mean- 
ing of  Magna  Charta  and  of  the  twelfth  article  of  our  Declaration 
of  Rights."    See  also,  United  States  v.  Hudson,  7  Cranch,  32;  Ander- 
son V.  Dunn,  6  Wheat.  204;    Ex  parte  Robinson,   19   Wall.   505; 


I 


SECT.  Ill]  "government  BY   INJUNCTION"  755 

Mugler  V.  Kansas,  123  U.  S.  623,  672;  Ex  parte  Terry,  128  U.  S.  289; 
Eilenbecker  v.  Plymouth  County,  134  U.  S.  31,  36,  in  which  Mr.  Jus- 
tice Miller  observed:  "If  it  has  ever  been  understood  that  proceed- 
ings according  to  the  common  law  for  contempt  of  court  have  been 
subject  to  the  right  of  trial  by  jury,  we  have  been  unable  to  find  any 
instance  of  it";  Interstate  Commerce  Commission  v.  Brimson,  154 
U.  S.  447,  488.  In  this  last  case  it  was  said  "surely  it  cannot  be 
supposed  that  the  question  of  contempt  of  the  authority  of  a  court 
of  the  United  States,  committed  by  a  disobedience  of  its  orders,  is 
triable,  of  right,  by  a  jury." 

In  brief,  a  court,  enforcing  obedience  to  its  orders  by  proceedings 
for  contempt,  is  not  executing  the  criminal  laws  of  the  land,  but 
only  securing  to  suitors  the  rights  which  it  has  adjudged  them  en- 
titled to. 

Further,  it  is  said  by  counsel  in  their  brief: 

"No  case  can  be  cited  where  such  a  bill  in  behalf  of  the  sovereign 
has  been  entertained  against  riot  and  mob  violence,  though  occur- 
ring on  the  highway.  It  is  not  such  fitful  and  temporary  obstruction 
that  constitutes  a  nuisance.  The  strong  hand  of  executive  power 
is  required  to  deal  with  such  lawless  demonstrations. 

"The  courts  should  stand  aloof  from  them  and  not  invade  execu- 
tive prerogative,  nor  even  at  the  behest  or  request  of  the  executive 
travel  out  of  the  beaten  path  of  well-settled  judicial  authority.  A 
mob  cannot  be  suppressed  by  injunction;  nor  can  its  leaders  be 
tried,  convicted,  and  sentenced  in  equity. 

"It  is  too  great  a  strain  upon  the  judicial  branch  of  the  govern- 
ment to  impose  this  essentially  executive  and  military  power  upon 
courts  of  chancery." 

We  do  not  perceive  that  this  argument  questions  the  jurisdiction 
of  the  court,  but  only  the  expediency  of  the  action  of  the  govern- 
ment in  applying  for  its  process.  It  surely  cannot  be  seriously  con- 
tended that  the  court  has  jurisdiction  to  enjoin  the  obstruction  of 
a  highway  by  one  person,  but  that  its  jurisdiction  ceases  when  the 
obstruction  is  by  a  hundred  persons.  It  may  be  true,  as  suggested, 
that  in  the  excitement  of  passion  a  mob  will  pay  little  heed  to  proc- 
esses issued  from  the  courts,  and  it  may  be,  as  said  by  counsel  in 
argument,  that  it  would  savor  somewhat  of  the  puerile  and  ridiculous 
to  have  read  a  writ  of  injunction  to  Lee's  army  during  the  late  civil 
war.  It  is  doubtless  true  that  inter  arma  leges  silent,  and  in  the 
throes  of  rebellion  or  revolution  the  processes  of  civil  courts  are  of 
little  avail,  for  the  power  of  the  courts  rests  on  the  general  support 
of  the  people  and  their  recognition  of  the  fact  that  peaceful  remedies 
are  the  true  resort  for  the  correction  of  wrongs.  But  does  not  coun- 
sel's argument  imply  too  much?  Is  it  to  be  assumed  that  these 
defendants  were  conducting  a  rebellion  or  inaugurating  a  uevolution, 
and  that  they  and  their  associates  were  thus  placing  themselves 
beyond  the  reach  of  the  civil  process  of  the  courts.'^    We  find  in  the 


756  THE    INJUNCTION  [CHAP.  XV 

opinion  of  the  Circuit  Court  a  quotation  from  the  testimony  given 
by  one  of  the  defendants  before  the  United  States  Strike  Commission, 
which  is  sufficient  answer  to  this  suggestion : 

"As  soon  as  the  employes  found  that  we  were  arrested,  and  taken 
from  the  scene  of  action,  they  became  demorahzed,  and  that  ended 
the  strike.  It  was  not  the  soldiers  that  ended  the  strike.  It  was  not 
the  old  brotherhoods  that  ended  the  strike.  It  was  simply  the  United 
States  courts  that  ended  the  strike.  Our  men  were  in  a  position  that 
never  would  have  been  shaken,  under  anj^  circumstances,  if  we  had 
been  permitted  to  remain  upon  the  field  among  them.  Once  we 
were  taken  from  the  scene  of  action,  and  restrained  from  sending 
telegrams  or  issuing  orders  or  answering  questions,  then  the  minions 
of  the  corporations  would  be  put  to  work.  .  .  .  Our  headquarters 
were  temporarily  demoralized  and  abandoned,  and  we  could  not 
answer  an}'  messages.  The  men  went  back  to  work,  and  the  ranks 
were  broken,  and  the  strike  was  broken  up,  .  .  .  not  by  the  army, 
and  not  by  any  other  power,  but  simply  and  solely  by  the  action  of 
the  United  States  courts  in  restraining  us  from  discharging  our  duties 
as  officers  and  representatives  of  our  employes." 

Whatever  any  single  individual  may  have  thought  or  planned, 
the  great  body  of  those  who  were  engaged  in  these  transactions 
contemplated  neither  rebellion  nor  revolution,  and  when  in  the  due 
order  of  legal  proceedings  the  question  of  right  and  wrong  was  sub- 
mitted to  the  courts,  and  by  them  decided,  they  unhesitatingly 
yielded  to  their  decisions.  The  outcome,  by  the  very  testimony  of 
the  defendants,  attests  the  wisdom  of  the  course  pursued  by  the 
government,  and  that  it  was  well  not  to  oppose  force  simply  by  force, 
but  to  invoke  the  jurisdiction  and  judgment  of  those  tribunals  to 
whom  by  the  Constitution  and  in  accordance  with  the  settled  con- 
viction of  all  citizens  is  committed  the  determination  of  questions 
of  right  and  wrong  between  individuals,  masses,  and  States.  .  .  . 

The  petition  for  a  writ  of  habeas  corpus  is  Denied.^ 

1  The  issue  of  the  famous  "Chicago  Omnibus  Bill,"  as  the  injunction  in  the 
Debs  case  was  popularly  known,  gave  rise  to  serious  and  widespread  criticism  in 
which  many  thoughtful  and  leading  lawyers  joined. 

"  The  courts  in  America,  and  especially  the  federal  courts,  have  shown  a  dis- 
position to  extend  their  powers  beyond  any  limits  heretofore  recognized.  In 
seeking  to  restrain  acts  in  their  nature  purely  criminal,  and  punishing  by  sum- 
mary proceedings  for  contempt  persons  accused  of  committing  tho.se  acts,  they 
have  been  charged  with  usurping  the  functions  of  the  criminal  law;  in  seeking 
to  restrain  all  persons,  whether  parties  to  the  suit  or  not,  and  whether  identified 
or  not,  they  have  been  charged  with  issuing  decrees  legislative  rather  than  judi- 
cial. The  (!a.se  of  the  United  States  v.  Del)S,  above  referred  to,  furnishes  an 
example  of  both  these  alh^ged  usurpations  of  power.  ...  If  the  course  there 
followed  can  be  supported,  tin;  principles  of  eciuity  jurisprudence  have  received 
an  important  extension  which  may  render  '  government  by  injunction  '  more 
than  a  mero  epithet.  .  .  .  The  persons  not  named  in  (he  bill  against  whom  the 
injunction  was  directed  were  not  specific  individuals  unknown  by  name  but  other- 
wi.se  identified;  they  were  all  persons  who  might  thereafter  engage  in  the  acta 
si)ecifie(i  in  the  injunction.      In  like  manner  the  prohibition  was  not  directed 


SECT.  Ill]  "government  BY   INJUNCTION"  757 

UNITED  STATES  v.  FRANK  J.  HAYES  et  al. 
United  States  District  Court,  Indiana.     1919 

Unreported 

TEMPORARY  INJUNCTION  issued  by  Anderson,  J.  —  And 
now,  on  this  eighth  day  of  November,  1919,  at  10  o'clock,  a.m.,  this 
cause  coming  on  to  be  heard  on  the  apphcation  of  the  plaintiff  for 
a  temporary  injunction  'pendente  lite,  as  praj'ed  in  said  bill,  the  United 
States  of  America,  plaintiff,  appearing  by  counsel,  and  the  defend- 
ants, Hugh  McLeod,  Lawrence  Bramlet,  John  O'Leary,  N.  J.  Ferry, 
John  J.  Mates,  Andrew  Steele,  William  Dalrymple,  Samuel  Bal- 
lantyne,  John  L.  Lewis,  W.  D.  Van  Horn,  Percy  Tetlow,  ¥X\\^  Searles, 
William  Green,  Frank  Walters,  G.  L.  Peck,  John  Wilkinson,  William 
Mitch,  Edward  Steward,  John  Roman,  Ira  Stoner,  T.  G.  Morgan 
appearing  by  counsel,  the  other  defendants  not  having  been  served 
and  not  appearing,  the  cause  being  submitted  to  the  Honorable 
Albert  B.  Anderson,  Judge  of  the  United  States  District  Court  for 
the  District  of  Indiana,  upon  the  verified  bill,  the  affidavits,  the 
evidence,  and  the  argument  of  counsel,  and  the  court  being  now  fully 
advised  in  the  premises: 

It  is  ordered  that  a  temporary  injunction  pendente  lite  issue  out 
of  and  under  the  seal  of  this  Court,  commanding  the  above-named 
defendants,  both  individually  and  in  their  representative  capacities 
as  officers  of  the  International  Union  LTnited  Mine  Workers  of 
America,  or  as  members  of  said  organization  or  any  of  its  district 
or  local  unions  or  any  committee  thereof,  and  all  persons  combining, 

against  specific  threatened  acts  of  interference  with  the  operation  of  the  rail- 
roads, but  against  all  acts  of  that  character  that  might  thereafter  be  contem- 
plated by  any  persons.  .  .  .  The  injunction  added  nothing  to  the  penalties 
under  which  the  defendants  acted,  save  to  subject  them  to  trial  and  punishment 
by  the  court  upon  a  summary  proceeding.  If  the  difficulty  of  securing  convictions 
for  crime  by  a  jury  is  so  serious  as  to  render  it  expedient  to  supplement  the  agencies 
of  the  criminal  law  by  a  resort  to  the  power  of  courts  of  equity,  the  remedy  should 
be  applied  by  the  legislature.  Courts  of  equity  cannot  with  propriety  or  safety 
extend  their  jurisdiction,  under  the  guise  of  protecting  property,  by  issuing  decrees 
imposing  merely  cumulative  prohibitions  against  that  which  the  criminal  law 
already  forbids,  in  order  summarily  to  try  and  punish  offenders  for  acts  in  viola- 
tion of  those  prohibitions."  William  H.  Dunbar,  Esq.,  Government  by  Injunc- 
tion, 13  Law  Quart.  Rev.  353,  355,  361  (1897). 

An  interesting  comparison  may  be  made  between  such  a  sweeping  injunction 
as  that  issued  in  the  Debs  case  and  the  Roman  Interdict  which  was  at  first  ap- 
parently confined  to  present  issues  arising  between  specific  persons,  but  which  in 
time  came  to  be  quite  stereotyped  and  broad  enough  to  cover  all  undefined  per- 
sons who  in  the  future  might  threaten  a  violation  of  the  plaintiff's  rights.  Of 
course,  the  Roman  law  did  not  boast  of  the  jury  system  of  criminal  trial.  As  to 
Roman  Interdicts,  see  Sohm,  Institutes  of  Roman  Law  (transl.  by  Ledlie)  (3d  ed.), 
sec.  56;  Greenidge,  The  Legal  Procedure  of  Cicero's  Time,  pp.  75-7S,  210  If.; 
Roby,  Roman  Law,  vol.  2,  pp.  441-448;  Buckland,  Principles  of  Roman  Private 
Law,  pp.  397-410;  P.  F.  Girard,  Manuel  Elementaire  de  Droit  Romain  (6th  ed.), 
pp.  1071-1079.    See  also,  Gaius,  Inst.,  Lib.  IV,  sees.  138-170. 


758  THE    INJUNCTION  [CHAP.  XV 

conspiring,  agreeing,  or  arranging  with  them,  and  all  other  persons 
whomsoever,  not  to  issue  any  messages  that  the  strike  of  the  miners 
and  mine  workers  in  the  bituminous  coal  fields  of  the  United  States 
heretofore  ordered  by  the  said  defendants  or  some  of  them  to  take 
effect  at  midnight  on  October  31,  1919,  is  to  be  enforced  as  pre- 
viously announced  or  otherwise  and  to  desist  and  refrain  from  doing 
an}'  further  act  whatsoever  to  bring  about  or  continue  in  effect  the 
above-described  strike  and  cessation  from  work  on  the  part  of  the 
miners  and  mine  workers  in  the  bituminous  mines;  from  issuing 
any  further  strike  orders  to  local  unions  and  members  of  local  unions 
or  to  district  unions  for  the  purpose  of  keeping  such  strike  in  effect 
or  for  the  purpose  of  supporting  such  strike  by  bringing  about  or 
maintaining  any  other  strikes;  from  issuing  anj^  instructions,  written 
or  oral,  covering  or  arranging  for  the  details  of  enforcing  such  strike 
ordered  to  begin  at  midnight  on  October  31,  1919;  from  issuing  any 
messages  of  encouragement  or  exhortation  to  striking  miners  or  mine 
workers  or  unions  thereof  to  abstain  from  work  and  not  to  return  to 
the  mines  in  pursuance  of  such  strike ;  and  from  issuing  and  distribut- 
ing, or  taking  any  steps  to  procure  the  issuance  or  distribution,  to 
miners  and  mine  workers  striking  and  abstaining  from  work  in  pursu- 
ance of  such  strike,  of  so-called  strike  benefits  or  sums  of  money 
previously  accumulated  or  subsequently  acquired  to  assist  such 
striking  miners  and  mine  workers  to  subsist  while  striking  or  to  aid 
them  in  any  way  by  reason  of  or  with  reference  to  such  strike  and 
abstaining  from  work,  and  from  conspiring,  combining,  agreeing, 
or  arranging  with  each  other  or  SLuy  other  person  to  limit  the  facilities 
for  the  production  of  coal,  or  to  restrict  the  suppl}^  or  distribution 
of  coal,  or  from  aiding  or  abetting  the  doing  of  any  such  act  or 
thing. 

It  is  further  ordered  that  the  above-mentioned  defendants,  and 
each  of  them,  be  and  they  are  hereby  further  enjoined  from  permit- 
ting the  strike  order  issued  on  or  about  October  15,  1919,  to  the  miners 
and  mine  workers  in  the  bituminous  coal  fields  of  the  United  States 
to  take  effect  on  midnight  of  October  31,  1919,  to  longer  remain  in 
effect,  commanding  them  to  desist  from  aiding  said  strike  by  per- 
mitting said  strike  order  to  remain  in  effect,  and  commanding  them 
to  issue  a  withdrawal  and  cancellation  of  said  strike  order  and  com- 
municate the  same  to  district  or  local  unions,  committees  and  mem- 
bers of  said  International  Union  United  Mine  Workers  of  America, 
as  fully  and  completely  as  the  said  strike  order  has  been  heretofore 
distributed  and  circulated  to  the  said  organization,  its  members, 
district  or  local  unions,  or  any  committee  thereof,  and  the  said  de- 
fendants are  allowed  until  six  o'clock,  p.m.,  on  the  11th  day  of  Novem- 
ber, 1919,  within  which  to  withdraw  and  cancel  said  strike  order  and 
notify  the  membership  committees,  local  and  district  unions  of  the 
said  International  Union  United  Mine  Workers  of  America,  of  the 
withdrawal  and  cancellation  thereof,  said  notice  of  withdrawal  and 


SECT.  Ill]  "government  BY  INJUNCTION"  759 

cancellation  to  be  submitted  to  the  Court  for  his  approval  within 
72  hours  from  the  hour  first  above  named. 

This  temporary  injunction  shall  take  effect  forthwith  as  to  the 
defendants  hereinabove  named  and  as  to  all  other  defendants  or 
persons  when  they  are  served  with  a  copy  thereof,  or  when  notice 
thereof  has  come  to  their  attention. 

Ordered,  adjudged  and  decreed  in  open  Court  on  the  date  first 
above  named. ^ 


Brandeis,  J.,  IN  TRUAX  v.  CORRIGAN 
257  U.S.—^  (1921) 

In  America  the  injunction  did  not  secure  recognition  as  a  possible 
remedy  until  1888.^  When  a  few  years  later  its  use  became  exten- 
sive and  conspicuous,  the  controversy  over  the  remedy  overshadowed 
in  bitterness  the  question  of  the  relative  substantive  rights  of  the 
parties.  In  the  storms  of  protest  against  this  use  many  thoughtful 
lawyers  joined.**  The  equitable  remedy,  although  applied  in  accord- 
ance with  established  practice,  involved  incidents  which,  it  was 
asserted,  endangered  the  personal  liberty  of  wage-earners.  The 
acts  enjoined  were  frequently,  perhaps  usually,  acts  which  were 
already  crimes  at  common  law  or  had  been  made  so  by  statutes. 
The  issues  in  litigation  arising  out  of  trade  disputes  related  largely 
to  questions  of  fact.  But  in  equity  issues  of  fact  as  of  law  were 
tried  by  a  single  judge,  sitting  without  a  jury.  Charges  of  violating 
an  injunction  were  often  heard  on  affidavits  merely,  without  the 
opportunity   of   confronting    or   cross-examining    witnesses.^     Men 

'  Unfortunately  the  injunction  in  this  case  was  issued  without  opinion.  Two 
very  interesting  questions  were  not  therefore  discussed,  i.  e.  (1)  the  basis  of  equity 
jurisdiction,  and  (2)  compulsory  service.  For  a  discussion  of  this  injunction,  see 
34  Harvard  Law  Rev.  401-407;  5  Cornell  Law  Quart.  184.  A  similar  case  which 
has  attracted  considerable  criticism  is  West  Virginia  Traction  &  Electric  Co.  v. 
Elm  Grove  Mining  Co.,  253  Fed.  772  (D.  C). 

-  Decision  rendered  by  the  U.  S.  Supreme  Court  on  Dec.  19,  1921.  (42  Sup.  Ct. 
138.)   The  passage  quoted  is  from  Mr.  Justice  Brandeis'  dissenting  opinion.  —  Ed. 

^  The  earliest  case  of  importance  was  Sherry  v.  Perkins,  147  Mass.  212  (1888). 
But  injunctions  were  granted  four  or  five  years  earlier.  Commons,  History  of 
Labor  in  the  United  States,  vol.  2,  p.  504. 

*  "Government  by  Injunction,"  by  W.  H.  Dunbar,  13  Law  Quart.  Rev.  347; 
"Government  by  Injunction,"  by  Charles  Noble  Gregory,  11  Harvard  Law  Rev. 
487;  "  Injunction  and  Organized  Labor,"  by  Charles  C.  Allen,  28  Am.  Law  Rev. 
828;  "The  Modern  Use  of  Injunctions,"  by  F.  J.  Stimson,  10  Pol.  Sci.  Quarterly, 
189;  "Strikes  and  Courts  of  Equity,"  by  William  Draper  Lewis,  46  Am.  Law 
Reg.  1;  "Government  by  Injunction,"  by  Percy  L.  Edwards,  57  Albany  Law 
Journal,  8;  "The  Abuses  of  Injunction,"  by  Samuel  Seabury,  29  Arena,  561; 
"  Government  by  Injunction,"  by  Cornelius  H.  Fauntleroy,  69  Central  Law 
Journal,  129;  "  Government  by  Injunction,"  by  Thomas  F.  Hargis,  4  Amer.  Fed. 
227.    See  Report  of  U.  S.  Industrial  Commission  (1901),  vol.  17,  p.  611. 

^  In  Long  V.  Bricklayers,  etc.,  Union,  17  Pa.  Dist.  R.  984,  the  judge  prefaced 
his  opinion  as  follows,  "Hardly  anything  of  greater  private  or  public  gravity  is 


760  THE    INJUNCTION  [CHAP.  XV 

found  guilty  of  contempt  were  committed  in  the  judge's  discretion, 
without  either  a  statutory  limit  upon  the  length  of  the  imprisonment, 
or  the  opportunity  of  effective  review  on  appeal,  or  the  right  to 
release  on  bail  pending  possible  revisory  proceedings.^  The  effect 
of  the  proceeding  upon  the  individual  was  substantially  the  same 
as  if  he  had  been  successfully  prosecuted  for  a  crime;  but  he  was 
denied,  in  the  course  of  the  equity  proceedings,  those  rights  which 
by  the  Constitution  are  commonly  secured  to  persons  charged  with 
a  crime. 

It  was  asserted  that  in  these  proceedings  an  alleged  danger  to 
property,  always  incidental  and  at  times  insignificant,  was  often 
laid  hold  of  to  enable  the  penalties  of  the  criminal  law  to  be  enforced 
expeditiously'  without  that  protection  to  the  liberty  of  the  individ- 
ual which  the  Bill  of  Rights  was  designed  to  afford;  that  through 
such  proceedings  a  single  judge  often  usurped  the  functions  not  only 
of  the  jury  but  of  the  pohce  department;  that  in  prescribing  the 
conditions  under  which  strikes  were  permissible  and  how  they  might 
be  carried  out,  he  usurped  also  the  powers  of  the  legislature;  and 
that  incidentally  he  abridged  the  constitutional  rights  of  individuals 
to  free  speech,  to  a  free  press  and  to  peaceful  assembly. 

It  was  urged  that  the  real  motive  in  seeking  the  injunction  was 
not  ordinarily  to  prevent  property  from  being  injured  nor  to  protect 
the  owner  in  its  use,  but  to  endow  property  with  active,  militant 
power  which  would  make  it  dominant  over  men.  In  other  words, 
that  under  the  guise  of  protecting  property  rights,  the  employer  was 
seeking  sovereign  power.  And  many  disinterested  men,  solicitous 
only  for  the  public  welfare,  believed  that  the  law  of  property  was  not 
appropriate  for  dealing  with  the  forces  beneath  social  unrest;  that 
in  this  vast  struggle  it  was  unwise  to  throw  the  power  of  the  state 
on  one  side  or  the  other  according  to  principles  deduced  from  that 
law;  that  the  problem  of  the  control  and  conduct  of  industry  de- 
manded a  solution  of  its  own;  and  that  pending  the  ascertain- 
ment of  new  principles  to  govern  industry,  it  was  wiser  for  the  state 
not  to  interfere  in  industrial  struggles  by  the  issuance  of  an  injunc- 
tion.2 

ever  presented  to  the  court,  and  yet  these  matters  are  constantly  receiving  ad- 
judication without  a  single  witness  brought  before  the  judge.  It  is  a  bad  practice. 
I  confess  my  iiial)ilit.y  to  determine  with  any  satisfaction  from  an  inspection  of 
inanimate  manuscript,  cjuestions  of  veracity.  In  disposing  of  the  present  rule 
I  am  compelled  to  find,  as  best  I  may  from  perusing  two  hundred  and  thirty-five 
lifeless  typewritten  pages  of  conflicting  evidence,  the  facts  which  must  determine 
respondent's  guilt  or  innocence  on  the  (]uasi-crirninal  charge  of  contempt." 

'  Hake  ;•.  IVopIe,  230  III.  174,  11)6,  discretion  of  judge;  Tin.sley  r.  Anderson, 
171  U.  S.  101,  107-lOS,  unlimited  commitment;  State  v.  Erickson,  60  Wa.sh. 
639,  641;  State  v.  Chouteau  County  Court,  .51  Mont.  'S:n,  342;  Scoric  v.  United 
States,  217  Fed.  871,  scope  of  review;  People  /'.  IVfTt,  .3  Cow.  (N.  Y.)  340;  Matter 
of  Vanderbilt,  4  Johns.  Ch.  (N.  Y.)  .')7,  admission  to  bail  within  discretion  of 
judge. 

2  See  Final  Report  of  the  (U.  S.)  Industrial  Commission  (1902);  Final  Report 


SECT.  Ill]  ''government  BY  INJUNCTION"  761 

"  Government  by  Injunction."  The  fro(iiient  and  growing  use  by  American 
courts  of  the  injunction  remedy  in  nation-wide  ial)or  disputes  has  opened  up  many 
dangers  and  led  to  serious  criticism  and  to  consideral)le  opposition.  See  the 
references  collected  in  note  1,  p.  717,  nupra. 

Charles  Noble  Gregory  (11  Harvard  Law  Rev.  510)  writes:  "The  satisfaction 
of  the  people  with  the  machinery  for  administering  justice  is  of  prime  impor- 
tance. The  disposition  of  the  judges,  which  is  a  part  of  their  human  nature,  to 
construe  power,  into  their  own  hands,  is  met  by  a  kindred  ;ind  etjual  desire'  in 
the  laymen  to  keep  their  share  in  affairs.  The  strain  put  upon  the  courts,  espe- 
ciall}'  in  meeting  the  difficulties  which  have  been  met,  and  I  will  not  say  ill  met, 
by  injunctions  in  the  cases  considered,  is  very  great.  .  .  .  The  present  Chief 
Justice  of  the  United  States,  before  he  became  the  head  of  the  bench,  remarked 
of  a  reforming  member  of  the  Chicago  bar,  '  Brother  B  would  codify  all  laws  in 
an  act  of  two  sections:  first,  all  people  must  be  good;  second,  courts  of  equity 
are  hereby  given  full  power  and  authority  to  enforce  the  provisions  of  this  act.'  " 
A  further  criticism  commonly  made  is  that  since  the  punishment  for  violation 
of  injunctions  is  by  contempt  proceedings,  people  may  be  subje(;ted  to  fine  or 
imprisonment  by  civil  courts  freed  from  the  ordinary'  safeguards  with  which  our 
Constitution,  in  order  to  prevent  possible  judicial  tyranny  or  abuse,  has  sur- 
rounded our  criminal  courts;  and  that  since  criminal  acts  may  be  and  often  are 
prohibited  by  injunction,  the  criminal  law  may  thus  be  enforced  summarily  with- 
out a  jury. 

Richard  C.  McMurtrie  (Am.  Law  Reg.  vol.  31  (First  Scries),  p.  14)  writes: 
"  The  whole  system  of  administering  the  criminal  laws  is  changed  in  the  one  par- 
ticular that  we  and  our  ancestors  have  thought  essential  to  political  freedom,  .  .  . 
that  is,  assuring  to  the  accused  of  any  crime  for  which  there  can  be  fine  and  im- 
prisonment imposed,  a  trial  by  jury,  according  to  the  course  of  the  common  law 
• —  that  is,  with  the  witnesses  produced  and  examined  in  the  presence  of  the  ac- 
cused aind  before  the  world."  He  criticizes  "  government  by  injunction"  on  the 
ground  of  "  the  value  of  the  rule  that  removes  criminal  jurisprudence  from  even 
the  apparent  caprice  of  the  judiciary,  and  compels  the  intervention  of  a  public 
trial  with  the  witnesses  and  the  accused  brought  face  to  face,  a  jury  to  determine 
the  facts,  the  public  discussion  of  the  admissibility  and  effect  of  evidence,  and  a 
fixed  standard  of  punishment,  with  a  right  to  a  review  and  to  an  appeal  to  the 
pardoning  power"  {ibid.,  p.  2). 

F.  J.  Stimson  (10  Pol.  Sci.  Quart.  189-190,  192-193)  writes:  "We  have  seen, 
in  private  law-suits  between  individuals  or  corporations,  courts  of  equity  —  civil, 
not  criminal,  courts  —  invoked  to  restrain,  not  alone  parties  to  the  suits,  but 
anybody,  the  whole  world,  with  or  without  actual  notice  of  a  court  order  or 
injunction,  not  merely  from  interfering  with  property  which  is  the  subject  of  the 
suits,  but  also  from  committing  or  conspiring  to  commit,  or  aiding  or  advising 
others  to  commit,  acts  which  are  criminal;  and  sometimes  only  on  the  ground 
that  they  are  criminal  acts  —  criminal  at  common  law,  or  made  so  by  the  recent 
statutes  known  as  the  Anti-trust  Law  and  the  Interstate  Commerce  Law.  We 
have  seen  more:  we  have  seen  persons  committing,  or  about  to  commit,  or  said 
to  be  about  to  commit,  such  acts,  arrested  by  these  civil  courts,  deprived  of  their 
liberty  and  punished  by  imprisonment;  and  this,  as  in  the  Debs  case  and  others, 
after  the  emergency  which  furnished  the  excuse  for  invoking  the  protective  juris- 
diction of  the  equity  court  has  long  gone  by.  And  we  have  seen  persons  so  pun- 
ished without  the  usual  safeguards  of  liberty  afforded  by  the  criminal  law  — 
without  indictment,  without  right  to  counsel,  without  being  confronted  with 

of  the  (U.  S.)  Commission  on  Industrial  Relations  (1915),  (Sen.  Doc.  415,  64th 
Cong.,  1st  Sess.),  vol.  1,  pp.  52-53,  90-92,  vol.  11,  testimony  of  Mr.  Gilbert  E. 
Roe,  p.  10477;  testimony  of  Mr.  Arthur  Woods,  p.  10550;  testimony  of  Dr. 
Frank  Goodnow,  p.  10599.  American  Federationist,  vol.  7,  p.  350;  vol.  9,  p.  685; 
vol.  15,  p.  976. 


762  THE    INJUNCTION  [CHAP.  XV 

witnesses,  without  trial  by  jury  —  and  sentenced  without  uniform  statute,  at  the 
discretion  of  the  judge.  .  .  . 

"  Now  let  us  formulate  the  objections  to  all  this;  and  I  think  we  shall  find 
that  the  public  anxiety  has  some  legal  ground.    Briefly,  the  objections  are  three: 

"1.  This  course  of  things  does  away  with  the  criminal  law  and  its  safeguards 
of  indictment,  proof  by  witnesses,  jury  trial,  and  a  fixed  and  uniform  punishment. 
Most  of  these  offenses  might  well  have  been  the  subject  of  criminal  prosecution; 
and  the  bill  of  rights  of  our  Constitution  says  that  in  all  criminal  prosecutions 
the  accused  shall  enjoy  the  right  to  a  speedy  and  public  trial  by  an  impartial 
jury  of  the  state  and  district  wherein  the  crime  shall  have  been  committed;  to 
be  informed  of  the  nature  and  cause  of  the  accusation;  to  be  confronted  with 
the  witnesses  against  him;  to  have  compulsory  process  for  obtaining  witnesses  in 
his  favor,  and  to  have  the  assistance  of  counsel  for  his  defense. 

"  2.  It  makes  the  courts  no  longer  judicial,  but  a  part  (and  it  bids  fair  to  be  a 
most  important  part)  of  the  executive  branch  of  government.  More  briefly  and 
picturesquely:  the  federal  courts  may  thus  grow  into  mere  star-chambers  and 
run  the  country  —  as  they  already  run  nearly  half  the  railroads. 

"  3.  It  tends  to  make  our  judiciary  either  tyrannical  or  contemptible.  If  we 
do  not  fall  under  a  tyranny,  such  as  might  have  existed  in  the  England  of  Charles  I, 
or  such  as  does  exist  in  the  South  America  of  today,  we  shall  fall  into  the  almost 
worse  plight  of  finding  an  injunction  of  our  highest  courts  a  mere  brutum  fubnen  — 
an  empty  threat,  a  jest  and  a  by-word;  so  that  through  their  'own  contempt 
process  the  courts  themselves  will  be  brought  into  contempt." 

For  a  defense  of  the  practice  of  the  courts,  see  United  States  v.  Haggerty, 
116  Fed.  510. 


Section  4.     General  Limitations  upon  the  Issue  of  Injunctions 

BADGER  BRASS  MANUFACTURING  COMPANY  v.  DALY 

Supreme  Court  of  Wisconsin.     1909 
137  Wis.  601 

Timlin,  J.  The  complaint  in  this  action  averred  the  corporate 
character  of  the  plaintiff,  the  nature  of  its  business,  its  ownership 
and  possession  of  real  estate  constituting  its  factory  plant,  and  the 
value  thereof,  and  the  number  of  men  employed  by  it  when  running 
at  its  full  capacity.  It  then  averred  the  existence  of  a  voluntary 
association  called  the  Metal  Polishers,  Buffers,  Platers,  Brass  Mould- 
ers, Brass  and  Silver  Workers'  Union  of  North  America,  composed 
of  many  thousand  members  of  workmen  in  the  lines  indicated  and 
operating  through  a  central  organization  and  district  and  subordi- 
nate organizations  called  lodges,  some  of  the  latter  being  in  the  city 
of  Kenosha,  where  the  plaintiff's  plant  was  located,  and  that  the 
membership  of  such  association  was  so  numerous  as  to  make  it  im- 
practicable to  cause  all  members  to  be  parties  to  this  action.  Some 
of  the  defendants  were  formerly  employed  by  the  jilaintiff,  but  were 
not  so  employed  at  the  commencement  of  the  action.  It  is  then 
averred : 

"That  all  of  the  defendants  named  in  the  title  of  this  complaint 
have  conspired,  combined,  and  confed(M'at(Hl  togc^tlicr  and  with  eacii 


SECT.  IV]  GENERAL  LIMITATIONS  763 

other,  and  with  many  hundred  other  persons  who  are  unknown  to 
this  plaintiff,  to  mahciously  injure  this  plaintiff,  and  to  cripple, 
injure,  and  destroy  its  said  business,  and  that  all  of  the  members 
of  the  said  Metal  Polishers,  etc.,  Union  of  North  America  have  com- 
bined, conspired,  and  confederated  together  and  with  many  other 
persons  unknown  to  this  plaintiff,  through  the  machinery  of  the  said 
association  and  its  said  locals,  and  otherwise,  to  injure,  cripple, 
impede,  and  obstruct  the  business  of  this  plaintiff,  for  the  purpose  of 
maliciously  compelling  this  plaintiff  to  do  and  perform  many  acts 
against  its  will,  as  hereinafter  more  particularly  set  out,  and  to 
maliciously  prevent  and  hinder  this  plaintiff  from  doing  and  perform- 
ing lawful  acts  —  that  is  to  say,  operating  its  factory  according  to 
the  wish  and  judgment  of  this  plaintiff  and  its  officers  in  a  lawful 
way;  that  the  said  defendants  have  so  conspired,  confederated,  and 
combined,  and  are  now  conspiring  and  undertaking  and  concerting 
together,  and  with  many  other  persons  within  and  without  said 
city,  through  said  association,  its  said  local  and  otherwise:  (a)  to 
compel  this  plaintiff  against  its  will  and  their  will,  to  pay,  etc.,  (b) 
to  compel  this  plaintiff,  etc.,  (c)  to  prevent  this  plaintiff,  etc.,  (d)  to 
prevent  this  plaintiff,  etc.,  (e)  to  prevent  this  plaintiff,  etc.,  (f)  to 
prevent  this  plaintiff,  etc.,  (g)  to  drive  away  by  intimidation  and 
threats  such  of  the  workmen  of  this  plaintiff  as  are  susceptible  of 
intimidation  and  to  entice  away  others,  and  to  induce,  by  intimi- 
dation or  other  improper  and  unlawful  methods,  customers  of  this 
plaintiff  to  abandon  this  plaintiff  and  place  their  trade  elsewhere, 
(h)  to  persuade,  etc." 

The  allegations  of  conspiracy  for  each  of  the  separate  purposes 
aforesaid  are  reiterated,  and  the  pleader  proceeds: 

"And  this  plaintiff  shows  that,  in  furtherance  of  the  said  con- 
spiracy, the  said  defendants  have  stationed  and  now  keep  upon  the 
streets  and  places  in  front  of  and  adjoining  and  adjacent  to  the  said 
factory  of  this  plaintiff  many  of  their  number,  who  are  called  by  the 
said  defendants  '  pickets,'  and  keep  said  pickets  to  the  varying  num- 
ber of  from  three  to  forty  constantly  during  the  day  upon  the  said 
streets  in  the  said  locality,  and  in  view  of  the  entrance  of  the  said 
premises  of  this  plaintiff,  and  at  the  railroad  depots  and  electric  car 
station  and  stopping  places  in  said  city  of  Kenosha,  and  cause  the 
said  pickets  constantly  to  loiter  about  the  premises  of  this  plaintiff 
and  patrol  the  streets  in  front  of  and  about  said  premises  and  about 
said  depot,  stations,  and  stopping  places,  in  squads  and  crowds,  and 
to  threaten  violence  to  workmen  employed  or  seeking  employment 
in  the  said  plant  of  this  plaintiff,  or  coming  thereto  in  search  of  such 
employment;  that  the  said  pickets  are  constantly  about  and  in  the 
neighborhood  of  the  said  premises,  and  that  every  time  that  any 
workman  leaves  or  approaches  the  said  premises,  or  that  any  work- 
man endeavors  to  approach  said  premises,  or  comes  thereto  for  the 
purpose  of  seeking  employment  from  this  plaintiff,   said  pickets, 


764  THE    INJUNCTION  [CHAP.  XV 

by  the  use  of  violence,  threats  of  violence,  intimidation  and  abusive 
language,  attempt,  and  endeavor  to  seduce  or  drive  away  said  work- 
men and  applicants  from  such  emplojTiient,  and  stop  such  workmen 
and  by  physical  force  compel  them  to  listen  to  the  arguments  and 
persuasions  or  threats  and  slanderous  words  of  said  pickets.  .  .  . 
The  plaintiff  further  alleges  that  the  said  defendants,  by  themselves 
and  their  co-conspirators,  have  on  several  occasions  assaulted,  beaten, 
bruised,  and  otherwise  maltreated  the  employees  of  this  plaintiff, 
and  more  especially  on  the  21st  day  of  November,  1907,  in  further- 
ance of  said  conspiracy  and  for  the  purpose  of  preventing  said  em- 
ploj^ees  from  remaining  in  the  emploj'ment  of  this  plaintiff,  and  for 
the  purpose  of  carrying  out  the  said  conspiracy  and  for  the  purpose 
of  preventing  this  plaintiff  from  operating  its  said  factory  and  busi- 
ness." 

It  is  then  averred  that  defendants,  by  themselves  and  through 
said  pickets  who  are  members  of  the  said  association,  have  on  many 
occasions  driven  away  men  from  the  employment  of  the  plaintiff, 
and  that  they  are  constantly  by  the  use  of  violence  and  intimidation 
driving  off  such  workmen,  and  that  they  give  out  and  threaten  that 
they  will  continue  this  course  of  action  and  will  continue  to  boycott 
this  plaintiff  and  its  employees  and  operatives,  and  will,  by  use  of 
the  means  aforesaid,  prevent  plaintiff  from  securing  or  retaining 
workmen  and  from  securing  or  performing  contracts  in  and  about 
its  business,  and  will  so  destroy  the  trade  of  the  plaintiff  and  force 
the  abandonment  of  its  factory  unless  the  plaintiff  shall  against  its 
will  do  or  refrain  from  the  acts  mentioned  as  the  objects  and  pur- 
poses of  the  conspiracy.  Then  follows  a  substantial  repetition 
characterizing  the  acts  of  the  defendants  as  a  nuisance  in  and  ob- 
structions to  the  highways  adjacent  to  plaintiff's  property,  and  that 
each  of  the  defendants  is  a  man  of  small  means  and  unable  to  respond 
in  damages  to  the  plaintiff.  A  perpetual  injunction  is  praj^ed  for; 
also  an  injunction  pendente  lite. 

The  remarkable  thing  about  this  complaint  is  the  generality  of  its 
averments  —  the  lack  of  dates,  instances,  facts,  or  circumstances. 
It  is  made  up  almost  wholly  of  conclusions  of  the  pleader.  The 
nearest  approach  to  fixing  time  is  that  averment  that  the  defendants 
and  their  co-conspirators  on  several  occasions  assaulted,  beat,  and 
otherwise  maltreated  employees  of  the  plaintiff  and  more  especially 
on  the  21st  day  of  November,  1907.  There  is  nothing  to  show  the 
relation  of  the  beaten  and  maltreated  eniployc^es  to  the  plaintiff 
except  the  mere  statement  that  they  were  emi)l()yees. 

When  one  laboring  man  is  prevented  from  soliciting  work,  engag- 
ing in  a  contract  to  work,  or  continuing  in  his  work  by  one  or  more 
of  his  fellow  laborers,  the  more  direct  wrong  is  that  done  to  the  labor- 
ing man  so  coerced,  and  he  ordinarily  should  bring  the  action  to 
re(h'ess  that  wrong.  At  the  same  time  a  right  of  action  of  a  different 
nature  sometimes  accrues  to  the  employer  of  such  person,  as  where 


SECT.  IV]  GENERAL  LIMITATIONS  765 

the  workman  so  coerced  is  in  this  manner  induced  to  break  his  exist- 
ing contract  with  such  employer,  or  in  cases  where  the  interference 
with  workmen  not  yet  under  contract  with  the  employer,  but  seek- 
ing employment,  becomes  so  greatly  attended  with  abuse  and  violence 
and  backed  by  a  conspiracy  and  the  aid  of  numbers  as  to  amount  to 
an  actionable  interference  with  the  right  of  the  employer  to  carry  on 
his  lawful  l)usiness.    In  such  contests  between  employers  and  work- 
men there  is  frequent  recourse  to  much  strategy,  and  the  law  does 
not  uphold  that  strategy  on  the  part  of  the  employer  by  which  he 
seeks  to  obtain  a  blanket  injunction  upon  a  blanket  complaint  abound- 
ing in  general  conclusions  but  lacking  in  facts  and  circumstances; 
nor  that  strategy  upon  the  part  of  employees  by  which,  under  pre- 
tense of  peaceful  picketing  and  disclaimer  of  responsibility  for  as- 
saults and  outrages  which  they  have  committed,  countenanced,  or 
encouraged,  they  seek  to  unlawfully  interfere  with  the  employer's 
right  to  conduct  his  own  business  in  a  proper  manner.    A  complaint 
in  an  action  for  an  injunction  by  the  employer  in  sufeh  case  should 
be  detailed,  certain,  and  specific,  giving  facts  and  circumstances, 
including  time  and  place  of  each  alleged  act  of  coercion,  the  name 
of  the  person  coerced,  if  known,  the  manner  in  which  he  was  coerced, 
and  the  manner  in  which  and  the  extent  to  which  it  affected  or  im- 
peded the  employer's  right  to  conduct  his  business  in  a  lawful  way. 
No  preliminary  injunction  should  have  been  granted  upon  the  com- 
plaint in  this  case.  .  .  . 


DAVITT  V.  AMERICAN  BAKERS'  UNION 
SupreJme  Court  of  California.     1899 

124  Cal.  99 

Garoutte,  J.  Action  for  damages  and  perpetual  injunction.  A 
general  and  special  demurrer  was  interposed  to  the  complaint  and 
sustained.  Plaintiffs  declined  to  amend,  and  judgment  went  against 
them.  This  appeal  is  from  the  judgment  and  also  from  the  order 
dissolving  the  temporary  injunction.  A  verified  answer  was  filed 
with  the  demurrer.  The  complainant  alleged  that  plaintiffs  were  co- 
partners carrying  on  the  bakery  business;  "that  for  the  purpose  of 
injuring  plaintiff's  business,  and  to  compel  them  to  discharge  their 
employees,  defendants  have  for  more  than  sixty  days  last  past  re- 
solved upon  and  conspired  together  .  .  .  and  to  that  end  and  for 
that  purpose  defendants  have  attempted,  by  force,  menace,  and 
threats,  to  intimidate  said  workmen,  and  to  prevent  them  from  work- 
ing for  the  plaintiffs."  It  is  further  alleged  that  defendants  have 
likewise  attempted,  by  force,  menace,  and  threats,  to  compel  the 
plaintiffs  to  discharge  said  employees;  that  defendants  in  various 
ways  have  maliciously  attempted  to  destroy  the  said  business  of 
plaintiffs,  and  still  threaten  the  destruction  of  plaintiff's  business. 


766  THE    INJUNCTION  [CHAP.  XV 

It  is  further  alleged  ''that  the  said  defendants  during  said  period 
have  maliciously  continued  to  publish,  or  cause  to  be  printed  and 
published,  distributed,  and  circulated,  false  and  malicious  publica- 
tions and  circulars  upon  the  said  premises  of  the  plaintiffs,  and  in 
front  of  and  in  the  vicinity  of  their  said  place  of  business,  for  the 
purpose  of  preventing  them  from  carrying  on  their  said  business, 
and  to  prevent  persons  from  dealing  with  them,  as  well  as  to  intimi- 
date both  the  plaintiffs  and  their  employees  in  their  conduct  of  the 
business,  and  in  the  performance  of  their  work,  and  they  threaten 
to  continue  to  do  so." 

In  the  face  of  the  demurrer  interposed  in  this  case  the  complaint 
must  fall.  Possibly,  the  complaint  is  not  sufficient  to  stand,  even 
against  a  general  demurrer,  but,  however  that  may  be,  it  surely  is 
too  weak  to  stand  an  attack  made  upon  it  by  a  special  demurrer. 
This  complaint  deals  in  generalities  throughout,  and  the  rule  for 
drafting  a  pleading  which  asks  for  the  interposition  of  equitable 
relief  demands  a  statement  of  the  specific  facts  upon  which  relief  is 
sought.  Inferences,  generalities,  presumptions,  and  conclusions 
have  no  place  in  such  a  pleading.  Conceding  the  formation  of  a 
conspiracy  is  charged,  having  for  its  object  a  common  design  and 
purpose,  still  we  find  no  statement  in  the  bill  as  to  any  specific  overt 
acts  done  by  defendants  in  pursuance  of  that  design  and  purpose. 
A  conspiracy,  however  atrocious  its  purpose,  is  not  the  subject  of  a 
civil  action,  for  it  does  not  damage.  (Herron  v.  Hughes,  25  Cal.  560.) 
There  is  no  allegation  whatever  showing  the  particular  threats  de- 
fendants made,  what  amount  or  kind  of  force  defendants  used,  what 
kind  or  character  of  menace  was  exercised,  or  how  the  business  was 
to  be  boycotted. 

The  allegation  as  to  the  acts  of  defendants  in  printing  and  cir- 
culating false  publications  and  circulars  is  somewhat  more  specific 
than  anything  else  we  find  in  the  pleading;  yet  that  allegation  is 
not  broad  enough.  The  substance  at  least  of  these  publications  and 
circulars  should  have  been  set  out  in  the  pleading.  The  pleading 
should  show  the  nature  of  the  publication.  The  defendants  and 
the  court  are  entitled  to  know  the  character  of  the  publication.  Per- 
chance upon  its  face  it  may  not  have  been  injurious,  it  may  not  have 
been  malicious,  and  it  may  not  have  been  false.  For  these  reasons 
the  bill  should  have  been  explicit  in  setting  forth  substantially  the 
contents  of  these  publications. 

For  the  foregoing  reasons  the  judgment  and  order  appealed  from 
are  affirmed. 

Harrison,  J.,  and  Van  Dyke,  J.,  concurred. 


SECT.  IV]  GENERAL  LIMITATIONS  767 

LAURIE  V.  LAURIE 

Court  of  Chancery  of  New  York.     1841 

9  Paige,  234 

The  bill  in  this  cause  was  filed  for  a  separation,  on  account  of  the 
alleged  cruel  usage  of  the  complainant  by  her  husband.  Upon  filing 
the  bill,  an  ex  parte  injunction  had  been  allowed,  by  an  injunction 
master,  to  restrain  the  defendant  from  annoying,  following,  harm- 
ing, taking  possession  of,  or  offering  any  personal  violence  to,  his 
wife  or  his  children.  On  the  coming  in  of  the  answer,  an  application 
was  made  to  dissolve  the  injunction.  A  cross  application  was  also 
made,  by  the  complainant,  for  an  attachment  against  the  defendant 
for  an  alleged  violation  of  the  injunction;  and  a  further  application 
for  alimony  and  for  an  allowance  to  carry  on  the  suit. 

The  Chancellor.  It  is  evident  from  the  language  of  the  injunction 
in  this  case  that  it  was  allowed  without  due  consideration.  As  the 
defendant  is  bound  to  obey  the  process  of  the  court  at  his  peril,  the 
language  of  the  injunction  should  in  all  cases  be  so  clear  and  explicit 
that  an  unlearned  man  can  understand  its  meaning,  without  the 
necessity  of  employing  counsel  to  advise  him  what  he  has  a  right  to 
do  to  save  him  from  subjecting  himself  to  punishment  for  a  breach 
of  the  injunction.  And  the  language  of  the  writ  should  at  the  same 
time  be  so  restricted  as  not  to  deprive  him  of  any  rights  which  the 
case  made  by  the  bill  does  not  require  that  he  should  be  restrained 
from  exercising.  Here  the  defendant  is  not  only  restrained  from 
offering  any  personal  violence  to  his  wife  and  children,  who  have 
left  his  house,  but  he  is  prohibited  from  annoying  them,  following 
them,  or  even  claiming  them.  And  an  application  is  now  made  to 
punish  him  for  a  breach  of  this  injunction,  on  the  ground  that  he  has 
annoijed  his  wife  by  writing  a  letter  to  her,  informing  her  that  he 
had  sent  her  some  bedding  and  clothing  which  her  next  friend  had 
requested  him  to  send  to  her;  but  which  letter  also  contained  pas- 
sages reflecting  severely  upon  her  conduct.  .  .  . 

The  injunction  must  therefore  be  dissolved. 

Giving  the  utmost  latitude  to  the  clause  of  the  injunction  restrain- 
ing the  defendant  from  annoying  his  wife,  or  claiming  his  children, 
I  do  not  think  he  has  done  any  thing  which  can  properly  be  con- 
sidered a  violation  of  its  provisions.  It  appears  that  the  letter  was 
written  at  the  suggestion  of  the  next  friend  of  the  complainant,  and 
put  into  his  hands  unsealed,  so  that  he  might  look  at  it  and  deliver 
it  to  her  if  he  thought  proper.  He  cannot  therefore  complain,  in 
her  behalf,  that  the  harsh  clauses  contained  in  that  letter  was  a 
violation  of  the  injunction;  although  they  had  no  relation  to  the 
necessaries  sent  for  the  use  of  the  complainant  and  her  child,  on 
account  of  which  the  defendant  was  asked  to  write  the  letter.  If  the 
letter  was  a  breach  of  the  injunction,  the  next  friend  should  not  have 


768  THE    INJUNCTION  [CHAP.  XV 

delivered  it  to  her;  and  if  he  had  kept  it  from  her,  she  could  not 
have  been  annoyed  either  by  the  civil  or  uncivil  clauses  contained 
therein.  The  claim  to  his  child,  as  appears  by  the  affidavits  pro- 
duced by  the  defendant,  was  nothing  more  than  an  expression  of  a 
wish  to  have  back  his  youngest  child,  and  a  hope  that  the  chancellor 
would  restore  it  to  him;  declaring  at  the  same  time  to  Mrs.  Dogherty 
that  he  would  not  act  in  opposition  to  the  injunction.  He  correctly 
concluded  that  an  application  to  the  court,  to  have  the  custody  of 
the  child  restored  to  him,  could  not  be  properly  considered  such  a 
claiming  of  his  child  as  would  amount  to  a  breach  of  this  extra- 
ordinary injunction.  The  motion  for  an  attachment  must,  therefore, 
be  denied,  with  costs  to  be  paid  by  the  next  friend,  who  is  legally 
liable  therefor.^  .  .  . 


Lord  Cottenham,  L.  C,  in  COTHER  c  THE  MIDLAND 
RAILWAY  CO. 

17  L.  /.  Ch.  {N.  S.)  235,  236  (1848) 
The  injunction  sought  to  be  discharged  restrains  the  company  from 
taking  and  using  any  more  of  the  land  of  the  plaintiffs  than  is  "neces- 
sary for  the  purpose  of  making  and  maintaining  the  railway  authorised 
to  be  made  thereon  by  the  act."  It  is  by  virtue  of  the  act  only  that 
they  are  authorised  to  take  any  part  of  the  plaintiffs'  lands;  the  in- 
junction, therefore,  only  prohibits  the  company  from  doing  what  they 
have  no  authority  to  do,  without  informing  them  what  are  the  limits 
of  such  authority,  that  is,  leaving  the  question  between  the  parties 
undecided,  but  to  be  discussed  on  a  motion  for  breach  of  the  injunc- 
tion. I  do  not  believe  that  the  Vice-Chancellor  intended  that  to  be 
the  form  of  the  injunction,  because  I  find  in  the  notes  of  his  judgment 
he  actually  decided  the  question  between  the  parties;  and  the  form 
of  the  order  appears  to  me  to  be  very  objectionable,  and  one  of  which 
I  have  taken  frequent  opportunity  of  expressing  my  disapprobation. 


Holmes,  J.,  in  SWIFT  &  CO.  v.  UNITED  STATES 

196  U.  S.  375,  396,  401  (1905) 

We  equally  are  bound,  by  the  first  principles  of  justice,  not  to 
sanction  a  decree  so  vague  as  to  put  the  whole  conduct  of  the  de- 
fendants' business  at  the  peril  of  a  summons  for  contempt.  We  can- 
not issue  a  general  injunction  against  all  possible  breaches  of  the 

law.  .  .  . 

The  general  words  of  the  injunction  "or  by  any  other  method  or 

'  Accord:  Lyon  v.  Botchford,  25  Hun  (N.  Y.),  57;  Little  v.  (Jallua,  39  App. 
Div.  (N.  Y.)  646;  G.  F.  Harvey  Co.  v.  National  DriiK  C'o.,  75  App.  Div.  (N.  Y.) 
103;  Whipple  v.  HutchinHon,  4  Blatch.  C.  C.  190;  High  on  Injunctions  (4th  ed.), 
sec.  37. 


SECT.  IV]  GENERAL  LIMITATIONS  769 

device,  the  purpose  and  effect  of  which  is  to  restrain  commerce  as 
aforesaid,"  should  be  stricken  out.  The  defendants  ought  to  be  in- 
formed, as  accurately  as  the  case  permits,  what  they  are  forbidden 
to  do.  Specific  devices  are  mentioned  in  the  bill,  and  they  stand 
prohibited.  The  words  quoted  are  a  sweeping  injunction  to  obey  the 
law,  and  are  open  to  the  objection  which  we  stated  at  the  beginning, 
that  it  was  our  duty  to  avoid. 


White,  J.,  in  NEW  HAVEN  R.  R.  v.  INTERSTATE 
COMMERCE  COMMISSION 
200  U.  S.  361,  404  (1906) 

The  contention,  therefore,  is  that  whenever  a  carrier  has  been  ad- 
judged to  have  violated  the  act  to  regulate  commerce  in  any  partic- 
ular it  is  the  duty  of  the  court,  not  only  to  enjoin  the  carrier  from 
further  like  violations  of  the  act,  but  to  command  it  in  general  terms 
not  to  violate  the  act  in  the  future  in  any  particular.  In  other  words, 
the  proposition  is  that  by  the  effect  of  a  judgment  against  a  carrier 
concerning  a  specific  violation  of  the  act,  the  carrier  ceases  to  be 
under  the  protection  of  the  law  of  the  land  and  must  thereafter  con- 
duct all  its  business  under  the  jeopardy  of  punishment  for  contempt 
for  violating  a  general  injunction.  To  state  the  proposition  is,  we 
think,  to  answer  it.  Swift  &  Co.  v.  United  States,  196  U.  S.  375.  .  .  . 
To  accede  to  the  doctrine  relied  upon  would  compel  us,  under  the 
guise  of  protecting  freedom  of  commerce,  to  announce  a  rule  which 
would  be  destructive  of  the  fundamental  liberties  of  the  citizen. 

Laughlin,  J.,  IN  GRASSI  CONTRACTING  CO.  v.  BENNETT 

174  App.  Div.  (N  .Y.)  244,  253  (1916) 

The  injunction  granted,  however,  is  altogether  too  broad,  and  is 
warranted  neither  by  the  facts  nor  the  law.  Among  other  things  it, 
in  effect,  enjoins  the  defendant  generally  from  soliciting  or  inducing 
plaintiff's  employees  by  any  species  of  threats,  abuses,  offers  or 
promises  of  money  or  by  any  unlawful  "or  other  means"  to  leave 
the  employ  of  the  plaintiff,  and  from  publishing  in  any  manner  that 
plaintiff's  business  has  been  blacklisted,  or  placed  on  any  unfair  list, 
and  from  threatening  others  with  injury  or  loss  to  their  business 
should  they  continue  to  deal  with  or  be  employed  by  the  plaintiff. 
There  is  no  evidence  that  the  defendant  has  threatened  or  intends 
to  do  any  of  these  things.  The  defendant  is  further  enjoined,  in 
effect,  from  calling  a  strike  for  any  reason,  by  a  general  provision 
enjoining  him  from  directing  the  members  of  his  union  "to  refuse 
to  work  for  the  plaintiff." 

The  injunction  order  should,  therefore,  be  modified.^ 

'  See  also,  High  on  Injunctions  (4th  ed.),  sec.  1415  f. 


770  THE    INJUNCTION  [CHAP.  XV 

RoDENBECK,  J.,  IN  MICHAELS  V.  HILLMAN 
111  Misc.  (N.  Y.)  284,  288  (1920) 

The  only  clause  in  the  injunction  order  which  is  open  to  miscon- 
struction, and  which  should  be  clarified  bj^  a  modification,  is  the 
fourth  paragraph,  wherein  the  order  restrains  the  Amalgamated 
Clothing  Workers  of  America,  and  its  servants,  agents,  deputies, 
representatives,  and  coadjutors,  from  interfering  with  or  injuring 
"in  any  way"  the  business,  property,  or  contracts  of  the  plaintiffs. 
The  language  quoted  should  be  amended  by  striking  out  "in  any 
way,"  and  substituting  in  their  place  the  words  "by  anj-  of  the  acts 
or  things  herein  restrained,"  and  by  inserting  after  the  words  "from 
preventing  or  attempting  to  prevent,"  in  the  same  paragraph,  the 
words  "by  any  of  the  acts  or  things  herein  restrained."  The  para- 
graph as  it  now  stands  forbids  lawful  acts  of  the  association  and  its 
representatives  which  may  interfere  with  or  injure  the  plaintiffs, 
which  would  include  the  legal  right  of  the  former  employees  of  the 
plaintiffs  to  strike  for  the  purpose  of  improving  their  condition,  and 
of  their  organization  to  exercise  its  legal  functions  to  make  the  strike 
a  success.  The  vice  of  the  language  used  in  this  paragraph  is  similar 
to  that  which  occurred  in  the  order  in  the  case  of  National  Protective 
Association  v,  Cumming,  170  N.  Y.  315,  349,  and  Wyckoff  Amuse- 
ment Co.,  Inc.  V.  Kaplan,  183  App.  Div.  205.^ 

^  Compare  Iron  Molders'  Union  v.  Allis-Chalmers  Co.,  166  Fed.  45,  supra, 
p.  194. 

Federal  Injunctions.  See  the  Clayton  Act  of  Oct.  15,  1914,  c.  323,  sec.  20, 
supra,  p.  145;  also  Duplex  Printing  Press  Co.  v.  Deering,  254  U.  S.  443,  supra, 
p.  440;  American  Steel  Foundries  r.  Tri-City  Central  Trades  Council,  257  U.  S. 
— ,  supra,  p.  213;  Truax  v.  Corrigan,  257  U.  S.  — ,  supra,  p.  220. 

That  a  private  person  cannot  maintain  a  suit  for  an  injunction  under  sec.  4  of 
the  Sherman  Anti-trust  Act  of  July  2,  1890,  see  Minnesota  v.  Northern  Securities 
Co.,  194  U.  S.  48,  70,  71.  But  see  the  Clayton  Act  of  Oct.  15,  1914,  c.  323,  sec.  16. 
See  also,  Paine  Lumber  Co.  v.  Neal,  244  U.  S.  459. 

Constitutionality  of  Statutes  Abolishing  the  Injunctive  Remedy  in 
Labor  Disputes.  Truax  v.  Corrigan,  257  U.  S.  — ,  supra,  p.  220;  Bogni  v. 
Perotti,  224  Mass.  152  (criticised  in  30  Harvard  Law  Rev.  75).  See  also,  20  Col. 
Law  Rev.  696. 


CHAPTER  XVI 

PROHIBITION    OF    STRIKES    BY    INJUNCTION    OR 

BY  THE  CRIMINAL  LAW  IN  THE  LIGHT  OF 

THE  THIRTEENTH  AMENDMENT 

Section  1.    The  Thirteenth  Amendment  and  Compulsory  Service 

CASE  OF  MARY  CLARK,  A  WOMAN  OF  COLOR 

Supreme  Court  of  Judicature  of  Indiana.     1821 

1  Blackford  (I rid.)  122 

Appeal  from  the  Knox  Circuit  Court. 

HoLMAN,  J.  In  obedience  to  a  writ  of  habeas  corpus,  issued  by 
the  Knox  Circuit  Court,  G.  W.  Johnson  brought  before  that  Court 
the  body  of  Mary  Clark  (a  woman  of  color),  said  to  be  illegally 
detained  by  him;  and  assigned  as  the  cause  of  her  detention,  that 
she  was  his  servant  by  indenture,  executed  at  Vincennes,  in  this 
State,  on  the  24th  of  October,  1816:  which  indenture  is  set  out  in 
the  return,  regularly  executed  and  acknowledged,  by  which  the  said 
Mary  (being  a  free  woman)  voluntarily  bound  herself  to  serve  him 
as  an  indented  servant  and  house-maid  for  20  years.  This  cause  of 
detention  was  deemed  sufficient  by  the  Circuit  Court,  and  said  Mary 
remanded  to  the  custody  of  the  said  Johnson.  She  has  appealed  to 
this  Court. 

This  application  of  Mary  Ctark  to  be  discharged  from  her  state 
of  servitude,  clearly  evinces  that  the  service  she  renders  to  the  obli- 
gee is  involuntary;  and  the  Constitution,  having  determined  that 
there  shall  be  no  involuntary  servitude  in  this  State,  seems  at  the 
first  view  to  settle  this  case  in  favor  of  the  appellant.  But  a  ques- 
tion still  remains,  whether  her  service,  although  involuntary  in  fact, 
shall  not  be  considered  voluntary  by  operation  of  law,  being  per- 
formed under  an  indenture  voluntarily  executed.  This  indenture  is 
a  written  obligatory.  ...  It  is  a  covenant  for  personal  service, 
and  the  obligee  requires  a  specific  performance.  It  may  be  laid  down 
as  a  general  rule,  that  neither  the  common  law  nor  the  Statutes  in 
force  in  this  State  recognize  the  coercion  of  a  specific  performance 
of  contracts.  The  principal,  if  not  the  only  exceptions  to  this  general 
rule,  are  statutory  provisions,  few,  if  any  of  which  are  applicable  to 
this  State,  and  none  of  them  has  any  bearing  on  this  case.  Apprentices 
are  compellable  to  a  specific  performance  of  the  articles  of  apprentice- 


772  THE   THIRTEENTH   AMENDMENT  [CHAP.  XVI 

ship,  but  their  case  rests  on  principles  of  a  different  nature.  They 
are  not  considered  as  performing  a  contract  of  their  own,  but  acting 
in  conformity  to  the  will  of  those  whose  right  and  duty  it  was  to 
exact  obedience  from  them.  That  right  and  duty  existed  by  nature 
in  the  parent,  and  are,  by  legal  regulations,  transferable  to  the 
master  during  the  minority  of  the  child:  and  when  transferred, 
either  by  the  parent,  or  those  who  stand  in  loco  parentis,  the  duty 
of  obedience  arises,  and  is  enforced  on  the  ground  of  parental  author- 
ity, and  not  on  the  principle  of  a  specific  performance  of  contracts; 
and  cannot  be  urged  as  an  exception  to  the  general  rule,  that  the 
coercion  of  a  specific  performance  of  contracts  is  not  contemplated 
in  law.  The  case  of  soldiers  and  sailors  depends  on  national  policy, 
and  cannot  be  used  in  the  elucidation  of  matters  of  private  right. 

There  are  some  covenants  that  may  be  specifically  enforced  in 
equity ;  but  they  are  of  a  very  different  nature  from  the  contract  be- 
fore us.  They  are  mostly  covenants  for  the  conveyance  of  real 
estate,  and  in  no  case  have  any  relation  to  the  person.  But  if  the 
law  were  silent,  the  policy  of  enforcing  a  specific  performance  of  a 
covenant  of  this  nature,  would  settle  this  question.  Whenever  con- 
tracting parties  disagree  about  the  performance  of  their  contract, 
and  a  Court  of  justice  of  necessity  interposes  to  settle  their  different 
rights,  their  feelings  become  irritated  against  each  other,  and  the 
losing  party  feels  mortified  and  degraded  in  being  compelled  to  per- 
form for  the  other  what  he  had  previously  refused,  and  the  more 
especially  if  that  performance  will  place  him  frequently  in  the  pres- 
ence or  under  the  direction  of  his  adversary.  But  this  state  of  deg- 
radation, this  irritation  of  feeling,  could  be  in  no  other  case  so  mani- 
festly experienced,  as  in  the  case  of  a  common  servant,  where  the 
master  would  have  a  continual  right  of  command,  and  the  servant 
be  compelled  to  a  continual  obedience.  Many  covenants,  the  breaches 
of  which  are  only  remunerated  in  damages,  might  be  specifically 
performed,  either  by  a  third  person  at  a  distance  from  the  adversary, 
or  in  a  short  space  of  time.  But  a  covenant  for  service,  if  performed 
at  all,  must  be  personally  performed  under  the  eye  of  the  master; 
and  might,  as  in  the  case  before  us,  require  a  number  of  years.  Such 
a  performance,  if  enforced  by  law,  would  produce  a  state  of  servitude 
as  degrading  and  demoralizing  in  its  consequences,  as  a  state  of 
absolute  slavery;  and  if  enforced  under  a  government  like  ours, 
which  acknowledges  a  personal  equality,  it  would  be  productive  of 
a  state  of  feeling  more  discordant  and  irritating  than  slavery  itself. 
Consequently,  if  all  other  contracts  were  specifically  enforced  by 
law,  it  would  be  impolitic  to  extend  the  principle  to  contracts  for 
personal  service.  .  .  .  But  it  is  not  the  master  who  in  this  case 
applies  for  legal  aid.  He  has  not  appealed  to  a  Court  of  justice  to 
obtain  a  specific  performance  of  this  indenture.  All  he  asks  from 
the  constituted  authorities  is,  that  they  would  withhold  their  assist- 
ance from  his  servant.    Does  this  alter  the  case  in  his  favor?    Is  it 


SECT.  I]  COMPULSORY   SERVICE  773 

more  consistent  with  good  policy,  that  a  man  possessing  the  power, 
should  be  left  to  enforce  a  specific  performance  of  a  contract  in  his 
own  behalf,  than  that  the  officers  of  justice,  on  a  full  consideration 
of  his  case,  should  enforce  it  for  him?  These  questions  are  not  only 
easily  answered  in  the  negative,  but  their  reverse  is  unquestionably 
true.  Deplorable  indeed  would  be  the  state  of  society,  if  the  obligee 
in  every  contract  had  a  right  to  seize  the  person  of  the  obligor,  and 
force  him  to  comply  with  his  undertaking.  In  contracts  for  personal 
service,  the  exercise  of  such  a  right  would  be  most  alarming  in  its 
consequences.  If  a  man,  contracting  to  labor  for  another  a  day,  a 
month,  a  year,  or  a  series  of  years,  were  liable  to  be  taken  by  his 
adversary,  and  compelled  to  perform  the  labor,  it  would  either  put 
a  stop  to  all  such  contracts,  or  produce  in  their  performance  a  state 
of  domination  in  the  one  party,  and  abject  humiliation  in  the  other. 
We  may,  therefore,  unhesitatingly  conclude,  that  when  the  law  will 
not  directly  coerce  a  specific  performance,  it  will  not  leave  a  Qarty 
to  exercise  the  law  of  the  strong,  and  coerce  it  in  his  own  behalf. 
A  state  of  servitude  thus  produced,  either  by  direct  or  permissive 
coercion,  would  not  be  considered  voluntary  either  in  fact  or  in  law. 
It  presents  a  case  where  legal  intendment  can  have  no  operation. 
While  the  appellant  remained  in  the  service  of  the  obligee  without 
complaint_,  the  law  presumes  that  her  service  was  voluntarily  per- 
formed; but  her  application  to  the  Circuit  Court  to  be  discharged 
from  the  custody  of  her  master,  establishes  the  fact  that  she  is  will- 
ing to  serve  no  longer;  and,  while  this  state  of  the  will  appears,  the 
law  cannot,  by  any  possibility  of  intendment,  presume  that  her  serv- 
ice is  voluntary.  The  case  of  an  apprentice  presents  a  different  state 
of  things.  The  minor  is  considered  as  having  no  legal  will.  He  has 
neither  the  power  nor  the  right  of  choosing,  whether  he  will  obey  or 
disobey  the  commands  of  his  master.  The  law,  therefore,  on  account 
of  the  immaturity  of  his  will,  cannot  presume  that  any  of  his  services 
are  involuntarily  performed.  The  appellant  in  this  case  is  of  legal 
age  to  regulate  her  own  conduct;  she  has  a  right  to  the  exercise  of 
volition;  and,  having  declared  her  will  in  respect  to  the  present 
service,  the  law  has  no  intendment  that  can  contradict  that  declara- 
tion. 'We  must  take  the  fact  as  it  appears,  and  declare  the  law  ac- 
cordingly. The  fact  then  is,  that  the  appellant  is  in  a  state  of  in- 
voluntary servitude;  and  we  are  bound  by  the  Constitution,  the 
supreme  law  of  the  land,  to  discharge  her  therefrom. 

Per  Curiam.  The  judgment  is  reversed  with  costs,  and  the  woman 
discharged.^ 

1  See  Freund,  The  Police  Power,  sec.  449;  Fry,  Specific  Performance  of  Con- 
tracts (5lh  ed.),  sees.  110-11.5. 

"  But  the  difficulty  of  enforcing  such  contracts  in  specie  is  now  admitted  by 
the  court.  It  is  not  for  the  interests  of  society  that  persons  who  are  not  desirous 
of  maintaining  continuous  personal  relations  with  one  another  should  be  com- 
pelled so  to  do."    Fry,  Specific  Performance  of  Contracts  (oth  ed.),  sec.  112. 


774  THE   THIRTEENTH  AMENDMENT  [CHAP.  XVI 

THIRTEENTH  AMENDMENT 

U.  S.  Constitution,  Amendment  XIII,  Section  1 

Neither  slavery  nor  involuntary  servitude,  except  as  a  punish- 
ment for  crime  whereof  the  party  shall  have  been  duly  convicted, 
shall  exist  within  the  United  States,  or  any  place  subject  to  their 
jurisdiction. 

BAILEY  V.  STATE  OF  ALABAMA 

Supreme  Court  of  the  United  States.     1911 

219  U.  S.  219 

Mr.  Justice  Hughes  delivered  the  opinion  of  the  court. 

This  is  a  writ  of  error  to  review  a  judgment  of  the  Supreme  Court 
of  tfte  State  of  Alabama,  affirming  a  judgment  of  conviction  in  the 
Montgomery  City  Court.  The  statute,  upon  which  the  conviction 
was  based,  is  assailed  as  in  violation  of  the  Fourteenth  Amendment 
of  the  Constitution  of  the  United  States  upon  the  ground  that  it 
deprived  the  plaintiff  in  error  of  his  liberty  without  due  process  of 
law  and  denied  him  the  equal  protection  of  the  laws,  and  also  of  the 
Thirteenth  Amendment  and  of  the  act  of  Congress  providing  for 
the  enforcement  of  that  Amendment,  in  that  the  effect  of  the  statute 
is  to  enforce  involuntary  servitude  by  compelling  personal  service  in 
liquidation  of  a  debt. 

The  statute  in  question  is  sec.  4730  of  the  Code  of  Alabama  of 
1896,  as  amended  in  1903  and  1907.  .  .  .  The  section,  thus  amended, 
reads  as  follows: 

"Any  person,  who  with  intent  to  injure  or  defraud  his  employer, 
enters  into  a  contract  in  writing  for  the  performance  of  any  act  of 
service,  and  thereby  obtains  money  or  other  personal  property  from 
such  emploj^er,  and  with  like  intent,  and  without  just  cause,  and  with- 
out refunding  such  mone}^,  or  paying  for  such  property,  refuses  or 
fails  to  perform  such  act  or  service,  must  on  conviction  be  punished 
by  a  fine  in  double  the  damage  suffered  by  the  injured  party,  but  not 
more  than  S300,  one-half  of  said  fine  to  go  to  the  county  and  one- 
half  to  the  party  injured.  .  .  .  And  the  refusal  or  failure  of  any 
person,  who  enters  into  such  contract,  to  perform  such  act  or  service 
...  or  refund  such  money  .  .  .  without  just  cause  shall  be  prima 
fade  evidence  of  the  intent  to  injure  his  employer  or  landlord  or  de- 
fraud him."  .  .  . 

There  is  also  a  rule  of  evidence  enforced  by  the  courts  of  Alabama 
which  must  be  regarded  as  having  the  same  effect  as  if  read  into  the 
statute  itself,  that  the  accused,  for  the  purpose  of  rebutting  the 
statutory  presumption,  shall  not  be  allowed  to  testify  "as  to  his  un- 
cornmunicuted  motives,  purpose  or  intention."  Bailey  v.  The  State, 
1()1  Alabama,  77,  78. 


SECT.  I]  COMPULSORY   SERVICE  775 

Bailey,  the  plaintiff  in  error,  was  committed  for  detention  on  the 
charge  of  obtaining  fifteen  dollars  under  a  contract  in  writing  with 
intent  to  injure  or  defraud  his  employer.  He  sued  out  a  writ  of 
habeas  corpus  challenging  the  validity  of  the  statute.  His  discharge 
was  refused  and  the  Supreme  Court  of  the  State  affirmed  the  order, 
holding  the  statute  to  be  constitutional.    158  Alabama,  18.  .  .  . 

Having  failed  to  obtain  his  release  on  habeas  corpus,  Bailey  was 
indicted.   .  .   . 

The  jury  found  the  accused  guilty,  fixed  the  damages  sustained 
by  the  injured  party  at  fifteen  dollars,  and  assessed  a  fine  of  thirty 
dollars.  Thereupon  Bailey  was  sentenced  by  the  court  to  pay  the 
fine  of  thirty  dollars  and  the  costs,  and  in  default  thereof  to  hard 
labor  "for  twenty  days  in  lieu  of  said  fine  and  one  hundred  and  six- 
teen days  on  account  of  said  costs." 

On  appeal  to  the  Supreme  Court  of  the  State  the  constitutionality 
of  the  statute  was  again  upheld  and  the  judgment  affirmed.  161 
Alabama,  75.  .  .  . 

We  cannot  escape  the  conclusion  that,  although  the  statute  in 
terms  is  to  punish  fraud,  still  its  natural  and  inevitable  effect  is  to 
expose  to  conviction  for  crime  those  who  simply  fail  or  refuse  to  per- 
form contracts  for  personal  service  in  liquidation  of  a  debt,  and 
judging  its  purpose  by  its  effect  that  it  seeks  in  this  way  to  provide 
the  means  of  compulsion  through  which  performance  of  such  service 
may  be  secured.  The  question  is  whether  such  a  statute  is  con- 
stitutional. .  .  . 

It  is  apparent  that  a  constitutional  prohibition  cannot  be  trans- 
gressed indirectly  by  the  creation  of  a  statutory  presumption  any 
more  than  it  can  be  violated  by  direct  enactment.  The  power  to 
create  presumptions  is  not  a  means  of  escape  from  constitutional 
restrictions.  And  the  State  may  not  in  this  way  interfere  with  mat- 
ters withdrawn  from  its  authority  by  the  Federal  Constitution  or 
subject  an  accused  to  conviction  for  conduct  which  it  is  powerless 
to  proscribe. 

In  the  present  case  it  is  urged  that  the  statute  as  amended,  through 
the  operation  of  the  presumption  for  which  it  provides,  violates  the 
Thirteenth  Amendment  of  the  Constitution  of  the  United  States  and 
the  act  of  Congress  passed  for  its  enforcement.  .  .  . 

The  language  of  the  Thirteenth  Amendment  was  not  new.  It 
reproduced  the  historic  words  of  the  ordinance  of  1787  for  the  govern- 
ment of  the  Northwest  Territory  and  gave  them  unrestricted  applica- 
tion within  the  United  States  and  all  places  subject  to  their  jurisdic- 
tion. While  the  immediate  concern  was  with  African  slavery,  the 
Amendment  was  not  limited  to  that.  It  was  a  charter  of  universal 
civil  freedom  for  all  persons,  of  whatever  race,  color  or  estate,  under 
the  flag. 

The  words  involuntary  servitude  have  a  "larger  meaning  than 
slavery."  .  .  .    The  plain  intention  was  to  abolish  slavery  of  what- 


776  THE   THIRTEENTH  AMENDMENT  [CHAP.  XVI 

ever  name  and  form  and  all  its  badges  and  incidents;  to  render 
impossible  any  state  of  bondage;  to  make  labor  free,  by  prohibiting 
that  control  by  which  the  personal  service  of  one  man  is  disposed 
of  or  coerced  for  another's  benefit  which  is  the  essence  of  involuntary 
servitude.  .  .  . 

The  act  of  March  2,  1867  (Rev.  Stat.,  sees.  1990,  5526,  supra), 
was  a  valid  exercise  of  this  express  authority.  Clyatt  v.  United 
States,  197  U.  S.  207.  It  declared  that  all  laws  of  any  State,  by 
virtue  of  which  any  attempts  should  be  made  "to  establish,  main- 
tain, or  enforce,  directly  or  indirectly,  the  voluntary  or  involuntary 
service  or  labor  of  any  persons  as  peons,  in  liquidation  of  any  debt 
or  obligation,  or  otherwise,"  should  be  null  and  void.  .  .  . 

The  fact  that  the  debtor  contracted  to  perform  the  labor  which 
is  sought  to  be  compelled  does  not  withdraw  the  attempted  enforce- 
ment from  the  condemnation  of  the  statute.  The  full  intent  of  the 
constitutional  provision  could  be  defeated  with  obvious  facility  if, 
through  the  guise  of  contracts  under  which  advances  had  been  made, 
debtors  could  be  held  to  compulsory  service.  It  is  the  compulsion 
of  the  service  that  the  statute  inhibits,  for  when  that  occurs  the 
condition  of  servitude  is  created,  which  would  be  not  less  involun- 
tary because  of  the  original  agreement  to  work  out  the  indebtedness. 
The  contract  exposes  the  debtor  to  liability  for  the  loss  due  to  the 
breach,  but  not  to  enforced  labor.  .  .  . 

The  act  of  Congress,  nullifying  all  state  laws  by  which  it  should 
be  attempted  to  enforce  the  "service  or  labor  of  any  persons  as 
peons,  in  liquidation  of  any  debt  or  obligation,  or  otherwise,"  neces- 
sarily embraces  all  legislation  which  seeks  to  compel  the  service  or 
labor  by  making  it  a  crime  to  refuse  or  fail  to  perform  it.  Such  laws 
would  furnish  the  readiest  means  of  compulsion.  The  Thirteenth 
Amendment  prohibits  involuntary  servitude  except  as  punishment 
for  crime.  But  the  exception,  allowing  full  latitude  for  the  enforce- 
ment of  penal  laws,  does  not  destroy  the  prohibition.  It  does  not 
permit  slavery  or  involuntary  servitude  to  be  established  or  main- 
tained through  the  operation  of  the  criminal  law  by  making  it  a 
crime  to  refuse  to  submit  to  the  one  or  to  render  the  service  which 
would  constitute  the  other.  The  State  may  impose  involuntary 
servitude  as  a  punishment  for  crime,  but  it  may  not  compel  one 
man  to  labor  for  another  in  payment  of  a  debt,  by  punishing  him 
as  a  criminal  if  he  does  not  perform  the  service  or  pay  the  debt 

What  the  State  may  not  do  directly  it  may  not  do  indirectly.  If 
it  cannot  punish  the  servant  as  a  criminal  for  the  mere  failure  or 
refusal  to  serve  without  paying  his  debt,  it  is  not  permitted  to  ac- 
complish the  same  result  l)y  creating  a  statutory  presinnption  which 
upon  proof  of  no  other  fact  exposes  him  to  conviction  and  punish- 
ment. Without  imputing  any  actual  motive  to  oppress,  we  must 
consider  the  natural  operation  of  the  statute  here  in  (iu(>stion  (Hen- 
derson V.  Mayor,  92  U.  S.  p.  268),  and  it  is  apparent  that  it  furnishes 


SECT.  I]  COMPULSORY  SERVICE  777 

a  convenient  instrument  for  the  coercion  which  the  Constitution 
and  the  act  of  Congress  forbid;  an  instrument  of  compulsion  pecul- 
iarly effective  as  against  the  poor  and  the  ignorant,  its  most  likely 
victims.  There  is  no  more  important  concern  than  to  safeguard  the 
freedom  of  labor  upon  which  alone  can  enduring  prosperity  be  l)ased. 
The  provisions  designed  to  secure  it  would  soon  become  a  barren 
form  if  it  were  possible  to  establish  a  statutory  presumption  of  this 
sort  and  to  hold  over  the  heads  of  laborers  the  threat  of  punishment 
for  crime,  under  the  name  of  fraud  but  merely  upon  evidence  of 
failure  to  work  out  their  debts.  The  act  of  Congress  deprives  of 
effect  all  legislative  measures  of  any  State  through  which  directly 
or  indirectly  the  prohibited  thing,  to  wit,  compulsory  service  to 
secure  the  payment  of  a  debt  may  be  established  or  maintained; 
and  we  conclude  that  sec.  4730,  as  amended,  of  the  Code  of  Ala- 
bama, in  so  far  as  it  makes  the  refusal  or  failure  to  perform  the  act 
or  service,  without  refunding  the  money  or  paying  for  the  property 
received,  prwia  facie  evidence  of  the  commission  of  the  crime  which 
the  section  defines,  is  in  conflict  with  the  Thirteenth  Amendment 
and  the  legislation  authorized  by  that  Amendment,  and  is  therefore 
invalid.  .  .  . 

Reversed  and  cause  remanded  for  further  proceedings  not  inconsist- 
ent with  this  opinion} 

Mr.  Justice  Holmes,  with  whom  concurred  Mr.  Justice  Lurton, 
dissenting.  .  .  . 

Ex  PARTE  HUDGINS 
Supreme  Court  of  Appeals  of  West  Virginia.     1920 

86  W.  Va.  526 

Habeas  corpus.  .  .  . 

Miller,  J.  Petitioner  seeks  his  discharge  from  custody,  the 
petition  and  return  of  the  officer  showing  that  he  is  being  restrained 
of  his  liberty  by  the  judgment  of  conviction  by  confession  and  sen- 

'  See  United  States  v.  Reynolds,  235  U.  S.  13-3. 

In  Clyatt  v.  United  States,  197  U.  S.  207,  215,  Mr.  -Justice  Brewer  in  the  course 
of  his  opinion  holding  that  peonage  was  forbidden  by  the  Thirteenth  Amendment, 
said:  "But  peonage,  however  created,  is  compulsory  service,  involuntary  servi- 
tude. The  peon  can  release  himself  therefrom,  it  is  true,  by  the  payment  of  the 
debt,  but  otherwise  the  service  is  enforced.  A  clear  distinction  exists  between 
peonage  and  the  voluntary  performance  of  labor  or  rendering  of  services  in  pay- 
ment of  a  debt.  In  the  latter  case  the  debtor,  though  contracting  to  pay  his  in- 
debtedness by  labor  or  service,  and  subject  like  any  other  contractor  to  an  action 
for  damages  for  breach  of  that  contract,  can  elect  at  any  time  to  break  it,  and 
no  law  or  force  compels  performance  or  a  continuance  of  the  service.  We  need 
not  stop  to  consider  any  possible  limits  or  exceptional  cases,  such  as  the  service 
of  a  sailor,  Robertson  v.  Baldwin,  165  U.  S.  27.5,  or  the  obligations  of  a  child  to 
its  parents,  or  of  an  apprentice  to  his  master,  or  the  power  of  the  legislature  to 
make  unlawful  and  punish  criminally  an  abandonment  by  an  employee  of  his 
post  of  labor  in  any  extreme  cases." 


778  THE   THIRTEENTH   AMENDMENT  [CHAP.  XVI 

tence  upon  two  indictments  found  by  the  grand  jurj^  on  May  13, 
1920,  the  first,  number  one,  charging  that  being  then  and  there 
an  able  bodied  male  resident  of  McDowell  County,  West  Virginia, 
between  the  ages  of  sixteen  and  sixty  years,  and  not  being  then  and 
there  a  bona  fide  student  during  school  term,  he  did  unlawfully  fail 
and  refuse  to  regularly  and  steadily  engage  for  at  least  thirty-six 
hours  for  one  week,  beginning  March  29,  1920,  and  ending  April  5, 
1920,  in  some  lawful  and  recognized  business,  profession,  occupation 
and  employment,  whereby  he  might  contribute  to  the  support  of 
himseK  and  those  legally  dependent  upon  him;  the  second,  number 
two,  charges  him  with  a  like  offense  committed  during  the  week 
beginning  April  5,  1920,  and  ending  April  12,  1920. 

The  grounds  alleged  and  relied  on  are:  first,  that  the  time  pre- 
scribed within  which  the  statute  was  to  remain  in  effect  had  expired 
by  limitation  when  petitioner  is  alleged  to  have  committed  the 
several  offenses;  second,  that  the  said  act  is  unconstitutional  and 
void.  .  .  . 

The  statute  on  which  the  indictments  were  found,  is  sec.  2  of  chap- 
ter 12  of  the  Acts  1917,  Second  Extraordinary  Session,  and  so  far 
as  pertinent  to  the  questions  presented,  is  as  follows:  "Sec.  2.  From 
the  time  this  act  becomes  effective,  and  thenceforward  until  six 
months  after  the  termination  of  the  present  war  between  the  United 
States  and  the  Imperial  German  government,  any  able  bodied  male 
resident  of  this  state  between  the  ages  of  sixteen  and  sixty,  except 
bona  fide  students  during  school  term,  who  shall  fail  or  refuse  to 
regularly  and  steadily  engage  for  at  least  thirty-six  hours  per  week 
in  some  lawful  and  recognized  business,  profession,  occupation  or 
employment,  whereby  he  may  contribute  to  the  support  of  himself 
and  those  legally  dependent  upon  him,  shall  be  held  to  be  a  vagrant 
within  the  meaning  and  effect  of  this  act,  and  shall  be  guilty  of  a 
misdemeanor.''  .  .  . 

The  military  services  rendered  by  petitioner  are  perhaps  not 
very  material,  but  they  should  not  be  overlooked  in  the  administra- 
tion of  a  law  of  this  nature,  limited  as  it  is  to  the  duration  of  the 
war,  which  the  petitioner  contends  had  ended  before  the  offenses 
with  which  he  was  charged  were  committed.  Whether  the  war  had 
then  ended  within  the  provisions  of  this  act,  we  need  not  decide, 
for  we  have  reached  the  conclusion  that  the  act  is  unconstitutional 
and  ought  to  be  so  declared. 

The  act  is  not  conditioned  on  whether  or  not  the  offender  has  other 
means  of  support,  or  dependents,  for  if  no  dependents,  by  the  pro- 
visions of  the  act,  no  payments  need  be  made  by  the  county  or 
municipality  on  account  of  his  labor.  At  the  connnon  law  vag- 
rancy consists  in  going  about  from  place  to  place  by  a  person  without 
visible  moans  of  support,  who  is  idle,  and  who,  though  able  to  work 
for  his  or  her  maintenance,  refuses  to  do  so,  but  lives  without  labor 
or  on  the  charity  of  others.    29  Am.  &  Eng.  Enc.  Law,  568;  Ex  parte 


SECT.  I]  COMPULSORY  SERVICE  779 

Strittmatter  (Tex.),  137  Am.  St.  Rep.  937,  note  944;  Id.  21  Ann. 
Cas.  477,  note  478.  But  as  these  authorities  point  out,  in  the  face 
of  the  many  different  statutes  in  this  country,  the  common-law  rule 
is  of  little  importance;  and  it  is  generally  conceded  that  within 
certain  broad  limitations,  the  legislature  may  by  statute  define  vag- 
rancy and  impose  punishment  for  the  offense. 

The  broad  ground  taken  by  petitioner  and  his  counsel  is  that  the 
statute  sought  to  be  enforced  against  him  is  an  unjust  and  unrea- 
sonable restraint  upon  his  personal  liberty,  guaranteed  by  the  State 
and  Federal  Constitutions.  .  .  .  The  qualifications  and  restraints 
which  the  law  may  properly  impose  on  personal  liberty,  classed  ac- 
cording to  their  purpose,  as  said  by  Cooley  are:  first,  those  of  public, 
second,  those  of  private  nature.  The  first  class  involves  the  relative 
duties  and  obligations  of  a  citizen  to  society  and  his  fellow-citizens, 
and  is  subdivided  by  Mr.  Cooley  as  follows:  "(1)  Those  imposed 
to  prevent  the  commission  of  crime  which  is  threatened;  (2)  those  in 
punishment  of  crime  committed;  (3)  those  in  punishment  of  con- 
tempts of  court  or  legislative  bodies,  or  to  render  their  jurisdiction 
effectual;  (4)  those  necessary  to  enforce  the  duty  citizens  owe  in 
defence  of  the  state;  (5)  those  which  may  become  important  to  pro- 
tect the  community  against  the  acts  of  those  who,  by  reason  of 
mental  infirmity,  are  incapable  of  self-control.  The  second  class  are 
those  which  spring  from  the  helpless  or  dependent  condition  of  in- 
dividuals in  the  various  relations  of  life."  Cooley's  Constitutional 
Limitations,  484.  .  .  . 

The  purpose  of  the  statute  was  not  to  subserve  any  of  the  pur- 
poses for  which  a  citizen  may  rightfully  be  deprived  of  his  liberty. 
Its  effect  was  to  require  every  able  bodied  male  resident  of  the  state, 
between  the  ages  specified,  regardless  of  his  financial  ability,  to  work, 
not  simply  long  enough  each  day  of  the  week  to  acquire  means  of 
support  for  himself  and  his  dependents,  but  for  the  number  of  hours 
required.  It  is  made  applicable  alike  to  young  and  old  within  these 
ages.  If  a  citizen,  say  of  fifty  or  fifty-five  years  of  age,  had  worked 
diligently  earlier  in  life,  and  had  laid  up  a  competency  with  which 
to  support  himself  and  his  dependents  in  his  or  their  stations  of  life, 
that  he  might  for  the  rest  of  his  days  live  in  comparative  ease  and 
freedom  from  the  burdens  of  his  earlier  years,  he  could  not  defend 
himself  on  that  account  nor  escape  the  penalties  imposed  for  a  vio- 
lation of  the  statute,  characterizing  him  as  a  vagrant  and  punish- 
able as  such.  Can  such  a  statute  find  justification  in  the  police 
power  of  the  state?  Though  this  power  has  never  as  yet,  and  prob- 
ably never  will  be  accurately  defined,  yet  under  the  Constitution 
it  is  confined  to  matter  relating  to  the  public  health,  the  public  morals, 
and  the  public  safety.  Booth  v.  People,  186  III.  43,  78  Am.  St.  Rep. 
229,  and  note  235;  State  v.  Peel  Splint  Coal  Co.,  36  W.  Va.  802.  And 
this  power  must  be  exercised  so  as  not  to  impose  unjust  or  unrea- 
sonable restraints  upon  personal  liberty.     Lawrence  v.  Barlow,  77 


780  THE   THIRTEENTH  AMENDMENT  [CHAP.  XVI 

W.  Va.  289.  Where  the  statute  undertakes  to  impose  restraints  on 
hberty,  it  should  be  confined  to  the  things  generally  comprehended 
within  the  police  power.  .  ,  . 

Our  conclusion  is  that  the  petitioner  is  entitled  to  be  discharged 
from  custody,  and  it  is  so  ordered.  Petitioner  discharged. 


ROBERTSON  v.  BALDWIN 
Supreme  Court  of  the  United  States.     1897 

165  U.  S.  275 

This  was  an  appeal  from  a  judgment  of  the  District  Court  for  the 
Northern  District  of  California,  rendered  August  5,  1895,  dismissing 
a  writ  of  habeas  corpus  issued  upon  the  petition  of  Robert  Robertson, 
P.  H.  Olsen,  John  Bradley  and  Morris  Hansen.  .  .  . 

The  record  was  somewhat  meagre,  but  it  sufficiently  appeared 
that  the  petitioners  had  shipped  on  board  the  Arago  at  San  Francisco 
for  a  voyage  to  Knappton  in  the  State  of  Washington;  thence  to 
Valparaiso;  and  thence  to  such  other  foreign  ports  as  the  master 
might  direct,  and  return  to  a  port  of  discharge  in  the  United  States; 
that  they  had  each  signed  shipping  articles  to  perform  the  duties  of 
seamen  during  the  course  of  the  voyage;  but,  becoming  dissatisfied 
with  their  employment,  they  left  the  vessel  at  Astoria,  in  the  State 
of  Oregon,  and  were  subsequently  arrested  under  the  provisions 
of  Rev.  Stat.  sees.  4596  to  4599,  taken  before  a  justice  of  the  peace, 
and  by  him  committed  to  jail  until  the  Arago  was  ready  for  sea 
(some  sixteen  days),  when  they  were  taken  from  the  jail  by  the  mar- 
shal and  placed  on  board  the  Arago  against  their  will ;  that  they  re- 
fused to  "turn  to"  in  obedience  to  the  orders  of  the  master,  were 
arrested  at  San  Francisco,  charged  with  refusing  to  work  in  violation 
of  Rev.  Stat.  sec.  4596;  were  subsequently  examined  before  a  com- 
missioner of  the  Circuit  Court,  and  by  him  held  to  answer  such 
charge  before  the  District  Court  for  the  Northern  District  of  Cali- 
fornia. 

Shortly  thereafter  they  sued  out  this  writ  of  habeas  corpus,  which, 
upon  a  hearing  before  the  District  Court,  was  dismissed,  and  an 
order  made  remanding  the  prisoners  to  the  custody  of  the  marshal. 

Whereupon  petitioners  appealed  to  this  court. 

Mr.  Justice  Brown  delivered  the  opinion  of  the  court.  .  .  . 

But  we  are  also  of  opinion  that,  even  if  the  contract  of  a  seaman 
could  be  considered  within  the  letter  of  the  Thirteenth  Amendment, 
it  is  not,  within  its  spirit,  a  case  of  involuntary  servitude.  .  .  . 

The  prohibition  of  slavery,  in  the  Thirteenth  Amendment,  is 
well  known  to  have  been  adopted  with  reference  to  a  state  of  affairs 
which  had  existed  in  certain  States  of  the  Union  since  the  founda- 
tion of  the  government,  while  the  addition  of  the  words  "involuntary 
servitude"  were  said  in  the  Slaughterhouse  cases,  IG  Wall.  36,  to 


SECT.  I]  COMPULSORY  SERVICE  781 

have  been  intended  to  cover  the  system  of  Mexican  peonage  and  the 
Chinese  coohe  trade,  the  practical  operation  of  which  might  have 
been  a  revival  of  the  institution  of  slavery  under  a  different  and  less 
offensive  name.  It  is  clear,  however,  that  the  amendment  was  not 
intended  to  introduce  any  novel  doctrine  with  respect  to  certain 
descriptions  of  service  which  have  always  been  treated  as  exceptional; 
such  as  military  and  naval  enlistments,  or  to  disturb  the  right  of  par- 
ents and  guardians  to  the  custody  of  their  minor  children  or  wards. 
The  amendment,  however,  makes  no  distinction  between  a  public 
and  a  private  service.  To  say  that  persons  engaged  in  a  public  serv- 
ice are  not  within  the  amendment  is  to  admit  that  there  are  excep- 
tions to  its  general  language,  and  the  further  question  is  at  once  pre- 
sented, where  shall  the  line  be  drawn?  We  know  of  no  better  answer 
to  make  than  to  say  that  services  which  have  from  time  immemorial 
been  treated  as  exceptional  shall  not  be  regarded  as  within  its  pur- 
view. 

From  the  earliest  historical  period  the  contract  of  the  sailor  has 
been  treated  as  an  exceptional  one,  and  involving,  to  a  certain  ex- 
tent, the  surrender  of  his  personal  liberty  during  the  life  of  the  con- 
tract. Indeed,  the  business  of  navigation  could  scarcely  be  carried 
on  without  some  guaranty,  beyond  the  ordinary  civil  remedies  upon 
contract,  that  the  sailor  will  not  desert  the  ship  at  a  critical  moment, 
or  leave  her  at  some  place  where  seamen  are  impossible  to  be  ob- 
tained—  as  Molloy  forcibly  expresses  it,  "to  rot  in  her  neglected 
brine."  Such  desertion  might  involve  a  long  delay  of  the  vessel 
while  the  master  is  seeking  another  crew,  an  abandonment  of  the 
voyage,  and,  in  some  cases,  the  safety  of  the  ship  itself.  Hence, 
the  laws  of  nearly  all  maritime  nations  have  made  provision  for 
securing  the  personal  attendance  of  the  crew  on  board,  and  for  their 
criminal  punishment  for  desertion,  or  absence  without  leave  during 
the  life  of  the  shipping  articles.  .  .  . 

The  judgment  of  the  court  below  is,  therefore,  Affirmed.^ 

Mr.  Justice  Harlan  dissenting. 

1  The  Selective  Draft  Law  was  held  constitutional  in  the  Selective  Draft  Law 
Cases,  245  U.  S.  366,  White,  C.  J.,  saying  (p.  390):  "Finally,  as  we  are  unable 
to  conceive  upon  what  theory  the  exaction  by  government  from  the  citizen  of 
the  performance  of  his  supreme  and  noble  duty  of  contributing  to  the  defense  of 
the  rights  and  honor  of  the  nation,  as  the  result  of  a  war  declared  by  the  great 
representative  body  of  the  people,  can  be  said  to  be  the  imposition  of  involuntary 
servitude  in  violation  of  the  prohibitions  of  the  Thirteenth  Amendment,  we  are 
constrained  to  the  conclusion  that  the  contention  to  that  effect  is  refuted  by  its 
mere  statement." 

See  also,  Kennedy  v.  Meara,  127  Ga.  68,  77  (involuntary  service  of  children); 
In  re  Dassler,  35  Kan.  678  (involuntary  road  labor). 


782  THE   THIRTEENTH   AMENDMENT  [CHAP.  XVI 

Section  2.    The  Thirteenth  Amendment  and  the  Strike 
A.     Compelling  Individuals  to  Serve 

ARTHUR  V.  OAKES 

U.  S.  Circuit  Court  of  Appeals.     Seventh  Circuit.     1894 

63  Fed.  310 

Petition  by  P.  M.  Arthur  and  others  to  modify  certain  injunctions 
issued  in  a  consolidated  suit  brought  by  the  Farmers'  Loan  &  Trust 
Co.  and  others  against  the  Northern  Pacific  Railroad  Co.  and  its 
receivers,  Thomas  F.  Oakes,  Henry  C.  Payne,  and  Henry  C.  Rouse. 
60  Fed.  803.  The  injunctions  were  only  modified  in  part,  and  the 
petitioners  appeal.  .  .  . 

Harlan,  Circuit  Justice.  ...  In  considering  the  important 
questions  presented  by  the  record,  we  have  assumed,  as  did  the  circuit 
court,  the  truth  of  all  the  material  facts  set  out  in  the  petition  and 
supplemental  petition  of  the  receivers.  .  .  . 

It  is  consequently  to  be  regarded  as  undisputed  in  this  cause  that 
at  the  time  the  writ  of  December  19,  1893,  was  issued,  some  of  the 
railroad  employes  were  giving  it  out  and  threatening  that  if  the  re- 
vised schedules  and  rates  in  question  were  enforced  they  would 
suddently  quit  the  service  of  the  receivers;  by  threats,  force,  and 
violence  would  compel  other  employes  to  quit  such  service,  and  by 
organised  effort  and  intimidation  prevent  others  from  taking  the 
places  of  those  who  might  quit;  would  disable  locomotives  and  cars 
so  that  they  could  not  be  safely  used,  or  used  only  after  expensive 
repairs;  would  take  possession  of  the  cars,  engines,  shops,  and  road- 
beds in  the  possession  of  the  receivers,  and  otherwise  prevent  their 
being  used;    would  so  conduct  themselves  with  regard  to  the  prop- 
erty in  the  hands  of  the  receivers  as  to  hinder  and  embarrass  them, 
their  officers  and  agents,  in  its  management  and  in  the  operation  of 
trains;    and  that  such  dissatisfied  employes,  and  others  not  in  the 
employ  of  the  receivers,  but  cooperating  with  those  employes  from 
a  spirit  of  sympathy  or  mischief,  would,  unless  restrained  by  the 
order  of  court,  have  carried  out  their  threats,  with  the  result  that 
the  receivers  would  not  only  have  been  compelled  to  abandon  the 
revised  schedules  and  rates  proposed  to  be  enforced,  but  would  have 
been  disabled  from  operating  the  railroads  in  their  custody,  from 
discharging  their  duties  to  the  public  as  carriers  of  passengers  and 
freight,  and  from  transporting  the  mails  of  the  United  States,  bring- 
ing thereby  incalculable  loss  upon   the  trust  prop(M-ty,   as  well  as 
causing  inconvenience  and  hardship  to  tlie  pu])li(',  })articularly  to 
the  people  in  that  part  of  the  country  traversed  by  the  Northern 
Pacific  Railroad,  who  were  dependent  upon  the  regular,  continuous 


i 


SECT.  II]  THE   STRIKE  783 

operation  of  that  road  for  commercial  facilities  of  every  kind,  as  well 
as  for  fuel,  provisions,  and  clothing. 

It  will  be  observed  that  the  motion  of  the  interveners  does  not 
question  the  power  of  the  court  to  restrain  acts  upon  the  part  of 
the  employes  or  others  which  would  have  directly  interfered  with 
the  receivers'  possession  of  the  trust  property,  or  obstructed  their 
control  and  management  of  it,  as  well  as  attempts,  by  force,  in- 
timidation, or  threats,  or  otherwise,  to  molest  or  interfere  with  per- 
sons who  remained  in  the  service  of  the  receivers  or  with  others  who 
were  willing  to  take  the  places  of  those  withdrawing  from  such 
service. 

But  it  was  contended  that  the  circuit  court  exceeded  its  powers 
when  it  enjoined  the  employes  of  the  receivers  "from  combining 
and  conspiring  to  quit,  with  or  without  notice,  the  service  of  said 
receivers,  with  the  object  and  intent  of  crippling  the  property  in 
their  custody,  or  embarrassing  the  operation  of  said  railroad,  and 
from  so  quitting  the  service  of  said  receivers,  with  or  without  notice, 
as  to  cripple  the  property,  or  prevent  or  hinder  the  operation  of  said 
railroad." 

This  clause  embodies  two  distinct  propositions,  —  one,  relating  to 
combinations  and  conspiracies  to  quit  the  service  of  the  receivers 
with  the  object  and  intent  of  crippling  the  property  or  embarrassing 
the  operation  of  the  railroads  in  their  charge;  the  other,  having 
no  reference  to  combinations  and  conspiracies  to  quit,  or  to  the 
object  and  intent  of  any  quitting,  but  only  to  employes  "so  quitting" 
as  to  cripple  the  property  or  prevent  or  hinder  the  operation  of  the 
railroad. 

Considering  these  propositions  in  their  inverse  order,  we  remark 
that  the  injunction  against  employes  so  quitting  as  to  cripple  the 
property  or  prevent  or  hinder  the  operation  of  the  railroad  was 
equivalent  to  a  command  by  the  court  that  they  should  remain  in 
the  active  employment  of  the  receivers,  and  perform  the  services 
appropriate  to  their  respective  positions,  until  they  could  withdraw 
without  crippling  the  property  or  preventing  or  hindering  the  opera- 
tion of  the  railroad.  The  time  when  they  could  quit  without  violat- 
ing the  injunction  is  not  otherwise  indicated  by  the  order  of  the  court. 
Under  what  circumstances  may  the  employes  of  the  receivers,  of 
right,  quit  the  service  in  which  they  are  engaged.*  Much  of  the  argu- 
ment of  counsel  was  directed  to  this  question.  We  shall  not  attempt 
to  lay  down  any  general  rule  applicable  to  every  case  that  may  arise 
between  employer  and  employes.  If  an  employe  quits  without  cause, 
and  in  violation  of  an  express  contract  to  serve  for  a  stated  time, 
then  his  quitting  would  not  be  of  right,  and  he  would  be  liable  for 
any  damages  resulting  from  a  breach  of  his  agreement,  and  per- 
haps, in  some  states  of  case,  to  criminal  prosecution  for  loss  of  life  or 
limb  by  passengers  or  others,  directly  resulting  from  his  abandoning 
his  post  at  a  time  when  care  and  watchfulness  were  required  upon 


784  THE   THIRTEENTH   AMENDMENT  [CHAP.  XVI 

his  part  in  the  discharge  of  a  duty  he  had  undertaken  to  perform. 
And  it  may  be  assumed  for  the  purposes  of  this  discussion  that  he 
would  be  hable  in  hke  manner  where  the  contract  of  service,  by 
necessary  impHcation  arising  out  of  the  nature  or  the  circumstances 
of  the  emplojTnent,  required  him  not  to  quit  the  service  of  his  em- 
ployer suddenly,  and  without  reasonable  notice  of  his  intention  to 
do  so. 

But  the  vital  question  remains  whether  a  court  of  equity  will, 
under  any  circumstances,  by  injunction,  prevent  one  individual  from 
quitting  the  personal  service  of  another?  An  affirmative  answer 
to  this  question  is  not,  we  think,  justified  by  any  authority  to  which 
our  attention  has  been  called  or  of  which  we  are  aware.  It  would 
be  an  invasion  of  one's  natural  liberty  to  compel  him  to  work  for  or 
to  remain  in  the  personal  service  of  another.  One  who  is  placed 
under  such  constraint  is  in  a  condition  of  involuntary  servitude,  — 
a  condition  which  the  supreme  law  of  the  land  declares  shall  not 
exist  within  the  United  States,  or  in  any  place  subject  to  their  juris- 
diction. Courts  of  equity  have  sometimes  sought  to  sustain  a  con- 
tract for  services  requiring  special  knowledge  or  peculiar  skill,  by 
enjoining  acts  or  conduct  that  would  constitute  a  breach  of  such 
contract.  To  this  class  belong  the  cases  of  singers,  actors,  or  musi- 
cians, who,  after  agreeing,  for  a  valuable  consideration,  to  give  their 
professional  service,  at  a  named  place  and  during  a  specified  time, 
for  the  benefit  of  certain  parties,  refuse  to  meet  their  engagement, 
and  undertake  to  appear  during  the  same  period  for  the  benefit  of 
other  parties  at  another  place.  Lumley  v.  Wagner,  1  De  Gex,  M. 
&  G.  604,  617;  Id.,  5  De  Gex  &  S.  485,  16  Jur.  871;  Montague  v. 
Flockton,  L.  R.  16  Eq.  189.  While  in  such  cases  the  singer,  actor, 
or  musician  has  been  enjoined  from  appearing  during  the  period 
named  at  a  place  and  for  parties  different  from  those  specified  in  his 
first  engagement,  it  was  never  supposed  that  the  court  could  by  in- 
junction compel  the  affirmative  performance  of  the  agreement  to 
sing  or  to  act  or  to  play.  In  Powell  Duffryn  Steam-Coal  Co.  v.  Taff 
Vale  Ry.  Co.,  9  Ch.  App.  331,  335,  Lord  Justice  James  observed 
that  when  what  is  required  is  not  merely  to  restrain  a  party  from 
doing  an  act  of  wrong,  but  to  oblige  him  to  do  some  continuous  act 
involving  labor  and  care,  the  court  has  never  found  its  way  to  do 
this  by  injunction.  In  the  same  case  Lord  Justice  Mollish  stated 
the  principle  still  more  broadly,  perhaps  too  broadly,  when  he  said 
that  a  court  can  only  order  the  doing  of  something  which  has  to  be 
done  once  for  all,  so  that  the  court  can  see  to  its  being  done. 

The  rule,  we  think,  is  without  exception  that  ccjuity  will  not  com- 
pel the  actual,  affirmative  performance  by  an  employe  of  merely  per- 
sonal services,  any  more  than  it  will  compel  an  employer  to  retain 
in  his  personal  service  one  who,  no  matter  for  what  cause,  is  not 
acceptable  to  him  for  service  of  that  character.  The  right  of  an 
employ^  engaged  to  perform  personal  service  to  quit  that  service 


SECT.  II]  THE    STRIKE  785 

rests  upon  the  same  basis  as  the  right  of  his  employer  to  discharge 
him  from  further  personal  service.  If  the  quitting  in  the  one  case 
or  the  discharging  in  the  other  is  in  violation  of  the  contract  between 
the  parties,  the  one  injured  by  the  breach  has  his  action  for  dam- 
ages; and  a  court  of  equity  will  not,  indirectly  or  negatively,  Vjy 
means  of  an  injunction  restraining  the  violation  of  the  contract, 
compel  the  affirmative  performance  from  day  to  day  or  the  affirma- 
tive acceptance  of  merely  personal  services.  Relief  of  that  char- 
acter has  alwaj^s  been  regarded  as  impracticable.  Toledo,  A.  A.  & 
N.  M.  Ry.  Co.  V.  Pennsylvania  Co.,  54  Fed.  730,  740,  Taft,  J.,  and 
authorities  cited;  Fry,  Spec.  Perf.  (3d  Am.  ed.)  sees.  87-91,  and 
authorities  cited. 

It  is  supposed  that  these  principles  are  inapplicable  or  should  not 
be  applied  in  the  case  of  employes  of  a  railroad  company,  which, 
under  legislative  sanction,  constructs  and  maintains  a  public  high- 
way primarily  for  the  convenience  of  the  people,  and  in  the  regular 
operation  of  which  the  public  are  vitally  interested.  Undoubtedly 
the  simultaneous  cessation  of  work  by  any  considerable  number  of 
the  employes  of  a  railroad  corporation,  without  previous  notice,  will 
have  an  injurious  effect,  and  for  a  time  inconvenience  the  public. 
But  these  evils,  great  as  they  are,  and  although  arising  in  many  cases 
from  the  inconsiderate  conduct  of  employes  and  emploj^ers,  both 
equally  indifferent  to  the  general  welfare,  are  to  be  met  and  remedied 
by  legislation  restraining  alike  employes  and  employers  so  far  as 
necessary  adequately  to  guard  the  rights  of  the  public  as  involved 
in  the  existence,  maintenance  and  safe  management  of  public  high- 
ways. In  the  absence  of  legislation  to  the  contrary,  the  right  of 
one  in  the  service  of  a  quasi  public  corporation  to  withdraw  there- 
from at  such  time  as  he  sees  fit,  and  the  right  of  the  managers  of 
such  a  corporation  to  discharge  an  employe  from  service  whenever 
they  see  fit,  must  be  deemed  so  far  absolute  that  no  court  of  equity 
will  compel  him,  against  his  will,  to  remain  in  such  service,  or  actually 
to  perform  the  personal  acts  required  in  such  employments,  or  com- 
pel such  managers,  against  their  will,  to  keep  a  particular  employe 
in  their  service.  It  was  competent  for  the  receivers  in  this  case, 
subject  to  the  approval  of  the  court,  to  adopt  a  schedule  of  wages 
or  salaries,  and  say  to  employes,  "We  will  pay  according  to  this 
schedule,  and  if  you  are  not  willing  to  accept  such  wages  you  will 
be  discharged."  It  was  competent  for  an  employe  to  say,  "I  will 
not  remain  in  your  service  under  that  schedule,  and  if  it  is  to  be 
enforced  I  will  withdraw,  leaving  you  to  manage  the  property  as 
best  you  may  without  my  assistance."  In  the  one  case,  the  exer- 
cise by  the  receivers  of  their  right  to  adopt  a  new  schedule  of  wages 
could  not,  at  least  in  the  case  of  a  general  employment  without 
limit  as  to  time,  be  made  to  depend  upon  considerations  of  hardship 
and  inconvenience  to  employes.  In  the  other,  the  exercise  by  em- 
ployes of  their  right  to  quit  in  consequence  of  a  proposed  reduction 


786  THE    THIRTEENTH   AMENDMENT  [CHAP.  XVI 

of  wages  could  not  be  made  to  depend  upon  considerations  of  hard- 
ship or  inconvenience  to  those  interested  in  the  trust  property  or  to 
the  pubHc.  The  fact  that  employes  of  railroads  may  quit  under 
circumstances  that  would  show  bad  faith  upon  their  part,  or  a  reck- 
less disregard  of  their  contract  or  of  the  convenience  and  interests  of 
both  employer  and  the  public,  does  not  justify  a  departure  from  the 
general  rule  that  equity  will  not  compel  the  actual,  affirmative  per- 
formance of  merely  personal  services,  or  (which  is  the  same  thing) 
require  employes,  against  their  will,  to  remain  in  the  personal  serv- 
ice of  their  employer. 

The  result  of  these  views  is  that  the  court  below  should  have 
eliminated  from  the  writ  of  injunction  the  words,  "and  from  so 
quitting  the  service  of  the  said  receivers,  with  or  without  notice,, 
as  to  cripple  the  property  or  prevent  or  hinder  the  operation  of 
said  railroad. 


"  1 


TOLEDO,  ANN  ARBOR,  &  NORTH  MICHIGAN  RAILWAY 
CO.  V.  PENNSYLVANIA  CO. 

United  States  Circuit  Court,  N.  D.  Ohio.     1893 
54  Fed.  730 

Taft,  Circuit  Judge.  This  is  a  motion  by  the  complainant,  the 
Toledo,  Ann  Arbor  &  North  Michigan  Railway  Co.,  for  a  tem- 
porary injunction,  to  remain  in  force  pending  this  action,  against 
P.  M.  Arthur,  the  chief  executive  of  the  Brotherhood  of  Locomotive 
Engineers,  and  a  defendant  herein,  to  restrain  him  from  issuing, 
promulgating,  or  continuing  in  force  any  rule  or  order  of  said  brother- 
hood, which  shall  require  or  command  any  employes  of  any  of  de- 
fendant railway  companies  herein  to  refuse  to  handle  and  deliver  any 
cars  of  freight  in  course  of  transportation  from  one  state  to  another 
to  the  complainant,  or  from  refusing  to  receive  and  handle  cars  of 
such  freight  which  have  been  hauled  over  complainant's  road;  and 
also  from  in  any  way,  directly  or  indirectly,  endeavoring  to  per- 

1  In  Kemp  v.  Division  No.  241,  25.5  111.  213,  219,  Cooke,  J.,  said:  "  It  is  the 
right  of  every  workman,  for  any  reason  which  may  seem  sufficient  to  him,  or  for 
no  reason,  to  quit  the  service  of  another,  unless  bound  by  contract.  This  right 
cannot  be  abridged  or  taken  away  by  any  act  of  the  legislature,  nor  is  it  subject 
to  any  control  l)y  the  courts,  it  being  guaranteed  to  every  person  under  the  jvu-is- 
diction  of  our  gov(;rnment  by  the  thirt(>enth  amendment  to  the  Federal  constitu- 
tion, which  declares  that  involuntary  servitude,  except  as  a  punishment  for 
crime,  .shall  not  exist  within  the  United  States  or  any  place  subject  to  their  juris- 
diction." 

In  Hopkins  v.  Oxley  Stave  Co.,  83  Fed.  912,  917,  Thayer,  J.,  said:  "The 
courts  have  invariably  ujjheld  the  right  of  individuals  to  form  labor  organizations 
for  the  protection  of  the  int(!r(!.sts  of  the  laboring  clas,ses,  and  have  denied  the 
power  to  enjoin  the  members  of  such  as,sociations  froni  withdrawing  peaceably 
from  any  servi(;e,  either  singly  or  in  a  body,  even  where  such  withdrawal  in- 
volves a  breach  of  contract." 


SECT.  II]  THE    STRIKE  787 

suade  any  of  the  employes  of  the  defendant  railway  companies 
whose  lines  connect  with  the  railroad  of  complainant  not  to  extend 
to  said  company  the  same  facilities  for  interchange  of  interstate 
traffic  as  are  extended  b}^  said  companies  to  other  railway  com- 
panies. A  temporary  restraining  order  to  this  effect  was  issued  by  me 
against  Arthur  ex  parte.  A  hearing  has  since  been  had,  and  the  ques- 
tion now  is  whether,  on  the  evidence  produced,  the  order  shall  be  con- 
tinued in  force  until  the  final  decision  of  the  case.^   .  .  . 

3.  Having  thus  shown  that  Arthur  and  all  the  members  of  the 
brotherhood  with  him,  conspiring  by  enforcing  Rule  12  to  injure 
complainant,  will  be  liable  in  damages  to  complainant  for  any  loss 
they  may  thereby  occasion,  the  question  remains,  can  equity  af- 
ford any  relief  by  preliminary  injunction  to  prevent  the  loss? 

We  shall  be  assisted  in  answering  the  question  by  considering, 
first,  what  the  court  may  do  by  injunction  against  the  defendant 
companies  and  against  the  engineers,  under  the  averment  of  the  bill 
that  the  defendant  companies  threaten  to  refuse  to  interchange 
freight  with  complainant  because  of  the  refusal  of  their  engineers 
to  handle  it.  .  .  . 

As  against  the  defendant  companies  the  complainant  is,  there- 
fore, clearly  entitled  to  a  preliminary  mandatory  injunction  to 
compel  them,  pending  the  hearing,  to  discharge  the  duties  imposed 
by  the  interstate  commerce  law,  and  to  exchange  with  complainant 
interstate  freight.  .  .  . 

If  a  preliminary  mandatory  injunction  may  issue  against  the 
defendant  companies  to  prevent  irreparable  injury,  it  may  certainly 
issue  against  their  officers,  agents,  employes,  and  servants.  This  is 
the  usual  form  of  the  writ  of  injunction  to  prevent  a  trespass,  a 
nuisance,  waste,  or  other  inequitable  act.  Mr.  Kerr  says,  in  his 
work  on  Injunctions  (1st  ed.,  p.  559): 

''Though  an  injunction  restraining  the  act  complained  of  is  claimed 
against  the  defendant  alone,  the  order  will,  if  necessary,  be  extended 
to  his  servants,  workmen,  and  agents;  and  it  is  of  course  to  insert 
these  words." 

Fost.  Fed.  Pr.  (1st  ed.)  234;  2  Daniell,  Ch.  Pr.  (5th  Amer.  ed.) 
1673;  Seton,  Decrees  ^th  ed.),  173;  Lord  Wellesley  v.  Earl  of 
Mornington,  11  Beav.  180;  Hodson  v.  Coppard,  29  Beav.  4;  Mexican 
Ore  Co.  V.  Guadalupe  Min.  Co.,  47  Fed.  Rep.  351,  356. 

The  necessity  for  inserting  the  words  in  the  injunction  issued 
against  the  defendant  companies  in  the  present  case  was  made  ap- 
parent by  the  averment  of  the  bill  that  they  had  threatened  to  re- 
fuse to  handle  complainant's  freight  because  of  the  unwillingness 
of  their  engineers  to  handle  it.  Mandatory",  as  well  as  prohibitory, 
injunctions  have  frequently  been  made  to  run  against  the  defendant, 

^  For  further  facts,  see  supra,  p.  127.  Only  that  part  of  the  opinion  deaHng 
with  the  power  of  a  court  of  equity  to  i?sue  the  injunction  praved  for  is  given.  — 
Ed. 


788^  THE   THIRTEENTH  AMENDMENT  [CHAP.  XVI 

his  agents,  servants,  and  workmen.  In  Smith  v.  Smith,  L.  R.  20 
Eq.  500,  Sir  George  Jessel,  M.  R.,  issued  a  mandatory  injunction 
requiring  the  defendant  to  take  down  a  wall  which  obstructed  the 
light,  and  that  injunction  ran  against  the  defendant,  his  contractors, 
builders,  agents,  and  workmen.  See  Seton,  Decrees  (Heard's  1st 
Amer.  ed.  from  4th  Eng.  ed.),  89.  A  similar  mandator}^  decree 
was  entered  against  the  defendant,  his  servants,  etc.,  for  permit- 
ting an  obstruction  of  the  flow  of  water  in  a  stream  to  continue  on 
his  lands.  Seton,  Decrees,  103;  Ivimey  v.  Stocker,  L.  R.  1  Ch.  App, 
396. 

This  form  of  injunction  against  a  corporation  is  generally  neces- 
sary in  order  to  enable  the  court  to  enforce  its  writ.  A  corpora- 
tion acts  only  through  its  officers  and  employes,  and  it  is  through 
them  only  that  its  action  can  be  restrained  or  compelled.  While 
doing  the  work  of  the  companj^,  the  employe  is  the  company,  and, 
having  notice  of  a  mandate  from  a  court  of  competent  jurisdiction 
as  to  how  that  work  must  be  done,  he  must  in  his  work  obey  the 
mandate.  Especially  is  this  true  with  respect  to  employes  of  com- 
mon carrier  corporations  subject  to  the  interstate  commerce  law. 
They  are  fully  identified  with  their  employer  in  the  discharge  of 
its  public  functions.  When  doing  the  work  of  the  corporation,  they 
are  made  criminally  liable  for  disobeying  the  commands  of  the  law 
to  the  corporation.  Nor  is  it  an  objection  to  granting  complainant 
this  equitable  relief  directly  against  the  servants  of  defendant  com- 
panies that  the  latter  will  be  bound  under  the  mandate  of  the  court 
to  discharge  servants  refusing  to  obey  the  law  and  the  order  of  the 
court.  The  complainant  is  not  required  to  await  this  action  on  the 
part  of  the  defendant  companies,  or  to  suffer  the  delay  which  a 
refusal  by  the  servants  may  entail.  Such  a  refusal  will  be  no  de- 
fense to  the  defendant  companies  (Chicago,  B.  &  Q.  Ry.  Co.  v.  Bur- 
lington, C.  R.  &  N.  Ry.  Co.,  34  Fed.  Rep.  481),  but  this  is  far  from 
saying  that  the  court  may  not,  in  complainant's  interest,  direct  its 
process  at  once  against  all  assuming  to  act  for  defendant  companies 
in  their  business.  Nor  is  the  mandatory  injunction  against  the  en- 
gineers an  enforced  specific  performance  of  personal  service.  It  is 
only  an  order  restraining  them,  if  they  assume  to  do  the  work  of  the 
defendant  companies,  from  doing  it  in  a  way  which  will  violate  not 
only  the  rights  of  the  complainant,  but  also  the  order  of  the  court 
made  against  their  employers  to  preserve  those  rights. 

They  may  avoid  obedience  to  the  injunction  by  actually  ceasing 
to  be  employes  of  the  company;  oth(M"wise  the  injunction  would 
be,  in  effect,  an  order  on  them  to  remain  in  the  service  of  the  com- 
pany, and  no  such  ordc^  was  ever,  so  far  as  the  authorities  show, 
issued  by  a  court  of  equity.  It  is  true  that,  if  they  quit  the  serv- 
ice of  the  company  in  ex(MMiti()n  of  Rul(^  12,  in  order  to  j)rocur(^  or 
compel  defendant  companies  to  injure  the  complainant  company, 
they  are  doing  an  unlawful  act,  rendering  themselves  lial)le  in  dam- 


SECT.  II]  '•  THE   STRIKE  789 

ages  to  the  complainant  if  any  injury  is  thereby  inflicted,  and  that 
they  may  be  incurring  a  criminal  penalty,  as  already  explained, 
but,  no  matter  how  inadequate  the  remedy  at  law,  the  arm  of  a 
court  of  equity  cannot  be  extended  by  mandatory  injunction  to 
compel  the  enforcement  of  personal  service  as  against  either  the 
employer  or  the  employed.  Stocker  v.  Brockelbank,  3  Macn.  &  G. 
250;  Johnson  v.  Railroad  Co.,  3  De  Gex,  M.  &  G.  914;  Pickering 
V.  Bishop  of  Ely,  2  Younge  &  C.  Ch.  249;  Lumley  v.  Wagner,  1  De 
Gex,  M.  &  G.  604.  The  reason  is  obvious.  It  would  be  impracticable 
to  enforce  the  relation  of  master  and  servant  against  the  will  of 
either.  Especially  is  this  true  in  the  case  of  railway  engineers,  where 
nothing  but  the  most  painstaking  and  devoted  attention  on  the 
part  of  the  employe  will  secure  a  proper  discharge  of  his  responsible 
duties;  and  it  would  even  seem  to  be  against  public  policy  to  ex- 
pose the  lives  of  the  traveling  public  and  the  property  of  the  ship- 
ping public  to  the  danger  which  might  arise  from  the  enforced  and 
unwilling  performance  of  so  delicate  a  service. 

We  finally  reach  the  question  whether  Arthur  can  be  enjoined 
from  ordering  the  engineers  to  carry  out  Rule  12.  That  he  intends 
to  enforce  the  rule,  if  not  enjoined,  is  not  denied.  If,  as  we  have 
seen,  the  injury  intended  is  of  such  a  character  that  the  court  may 
issue  its  mandatory  injunction  against  the  engineers  to  prevent  them 
from  inflicting  it,  Arthur  may  certainly  be  restrained  by  prohibitory 
injunction  from  ordering  them  to  inflict  it.  Arthur's  order,  if  issued, 
will  be  obeyed,  because  the  penalty  of  disobedience  is  expulsion 
from  the  brotherhood.  The  many  engineers  who  serve  the  defendant 
companies  will  refuse  to  handle  the  complainant's  freight.  The  de- 
fendant companies  will  probably  be  coerced  thereby  to  refuse  com- 
plainant's freight,  for  the  bill  avers  that  they  have  threatened  to  do 
so.  The  interstate  business  of  complainant  will  be  interrupted  and 
interfered  with,  at  every  hour  of  the  day,  and  at  every  point  within 
a  radius  of  many  miles,  and  all  because  of  Arthur's  order.  The  in- 
jury will  be  irreparable,  and  a  judgment  for  damages  at  law  will  be 
wholly  inadequate.  The  authorities  leave  no  doubt  that  in  such  a 
case  an  injunction  will  issue  against  the  stranger  who  thus  intermed- 
dles, and  harasses  complainant's  business.  ...  It  would  seem  from 
the  foregoing  authorities  that  we  may  enjoin  Arthur  from  directing 
the  engineers  to  quit  work,  for  the  purpose  of  coercing  the  defendant 
companies  to  violate  the  law  and  complainant's  rights.  Though 
we  cannot  enjoin  the  engineers  from  unlawfully  quitting,  it  does 
not  follow  that  we  may  not  enjoin  Arthur  from  ordering  them  to  do 
so.  An  injunction  in  this  form,  however,  has  not  been  asked,  and 
we  need  not  decide  the  question.  .  .  . 

The  temporary  injunction  will  be  allowed,  as  prayed  for.^ 

1  Accord:  Southern  California  Ry.  Co.  v.  Rutherford,  62  Fed.  796.  See  also, 
Stephens  v.  Ohio  State  Telephone  Co.,  240  Fed.  759. 


790  THE   THIRTEENTH    AMENDMENT  [CHAP.  XVI 

IN  RE  LENNON 
Supreme  Court  of  the  United  States.     1897 

166  U.  S.  548 

Th's  was  a  petition  for  a  writ  of  habeas  corpus  originallj^  filed  in 
the  Circuit  Court  for  the  Northern  District  of  Ohio. 

The  petitioner  alleged  that  he  was  a  citizen  of  the  State  of  Ohio, 
and  was  unlawful^  restrained  of  his  liberty  by  the  marshal,  under 
an  order  of  the  Circuit  Court  of  the  United  States,  made  in  a  case 
pending  in  that  court,  wherein  the  Toledo,  Ann  Arbor  and  North 
^Michigan  Railway  Co.,  a  corporation  of  the  State  of  Michigan,  was 
complainant,  and  several  railway  companies,  citizens  of  Ohio,  as 
well  as  the  IMichigan  Central  Railroad  Co.,  a  citizen  of  Michigan, 
were  defendants. 

The  bill  in  that  case,  which  was  annexed  to  the  petition  as  an 
exhibit,  averred  the  complainant  to  be  the  owner  of  a  line  of  rail- 
road from  Toledo,  Ohio,  northwesterly  through  the  State  of  Michigan; 
that  a  large  part  of  its  business  consisted  in  the  transportation  of 
freight  cars  from  points  in  the  States  of  Michigan,  IVIinnesota  and 
Wisconsin  to  points  in  Ohio  and  other  States  east  thereof,  and  that 
it  was  engaged  as  a  common  carrier  in  a  large  amount  of  interstate 
commerce,  which  was  regulated  and  controlled  by  the  Interstate 
Commerce  Act  of  Congress.  The  bill  further  averred  that  the  de- 
fendants' lines  of  railroad  connected  with  those  of  complainant  at 
or  near  Toledo,  and  that  a  large  and  important  part  of  its  business 
consisted  in  the  interchange  of  freight  cars  between  the  defendant 
and  complainant  companies,  and  was  subject  to  the  provisions  of 
the  Interstate  Commerce  Act;  that  it  was  the  duty  of  the  defendant 
companies  to  afford  reasonable  and  equal  facilities  for  the  inter- 
change of  traffic,  and  to  receive,  forward  and  deliver  freight  cars  in 
the  ordinary  transaction  of  business,  without  any  discrimination; 
that  the  defendant  companies,  and  their  employes,  had  given  out 
and  threatened  that  they  would  refuse  to  receive  from  complainant 
cars  billed  over  its  road  for  transportation  by  complainant  to  their 
destination,  for  the  reason  that  the  complainant  had  employed  as 
locomotive  engineers  in  its  service  men  who  were  not  members  of 
the  Brotherhood  of  Locomotive  Engineers,  "an  irresponsible  vol- 
untary association,"  and  that  the  locomotive  engineers  in  the  em- 
ploy of  the  defendant  companies  had  refused  to  handle  cars  to  be 
interchanged  with  the  complainant's  road;  notwithstanding  that 
they  cf)ntinued  to  afford  the  other  railroad  companies  full  and  free 
facilities  for  the  interchange  of  traffic,  while  refusing  to  transact 
such  business  with  the  complainant,  thereby  illegally  discriminat- 
ing against  it. 

Upon  the  filing  of  this  bill,  and  upon  tiie  application  of  the  com- 
plainant, the  .Circuit  Court  issued  an   injunction  against  the  de- 


SECT.  II]  THE    STRIKE  791 

fendants,  their  officers,  agents,  servants  and  employes,  enjoining 
them  from  refusing  to  afford  and  extend  to  the  Toledo,  Arm  Arbor 
and  North  Michigan  Railway  Co.  the  same  facilities  for  an  inter- 
change of  interstate  business  between  the  companies  as  were  (enjoyed 
by  other  railway  companies,  and  from  refusing  to  receive  from  the 
complainant  company  cars  billed  from  points  in  one  State  to  points 
in  another  State,  which  might  be  offered  to  the  defendant  companies 
by  the  complainant. 

The  injunction  was  served  upon  the  Lake  Shore  and  Michigan 
Southern  Railway  Co.,  one  of  the  defendants,  one  of  whose  employes 
was  the  appellant,  James  Lennon,  a  locomotive  engineer,  who  had 
received  notice  of  the  injunction,  and,  still  continuing  in  the  service 
of  the  company,  had  refused  to  obey  it. 

Thereupon  the  Lake  Shore  company  applied  to  the  court  for  an 
attachment  against  Lennon,  and  certain  others  of  its  engineers  and 
firemen,  setting  forth  that,  with  full  knowledge  of  the  injunction 
theretofore  made,  they  had  refused  to  obey  the  order  of  the  court, 
and  deserted  their  locomotives  and  engines  in  the  yard  of  the  com- 
pany, for  the  reason  that  Ann  Arbor  cars  of  freight  were  in  the  trains 
of  such  company,  and  that  they  had  refused  to  haul  such  cars  and 
perform  their  service  for  that  reason. 

The  persons  named,  including  the  petitioner  Lennon,  being  served 
with  an  order  to  show  cause,  appeared  in  pursuance  of  such  order 
in  person  and  by  counsel,  and  witnesses  were  examined  as  to  their 
knowledge  of,  and  as  to  their  violation  of,  the  order.  The  court 
found  that  Lennon  was  guilty  of  contempt  in  disobeying  the  order 
of  injunction,  and  imposed  a  fine  of  fifty  dollars  and  costs.  Toledo, 
Ann  Arbor  &  North  Michigan  Railway  Co.  v.  Pennsylvania  Co., 
54  Fed.  Rep.  746. 

Thereupon  Lennon  filed  this  petition,  setting  forth  the  above 
facts,  and  alleging  that  the  Circuit  Court  had  no  jurisdiction  or 
lawful  authority  to  arrest  or  proceed  against  him.  .  .  . 

Upon  a  hearing  in  the  Circuit  Court  it  was  ordered  that  the  peti- 
tion be  dismissed.  Lennon,  after  appealing  to  this  court,  which 
held  it  had  no  jurisdiction  and  dismissed  the  appeal,  150  L^.  S.  393, 
thereupon  appealed  to  the  Circuit  Court  of  Appeals  for  the  Sixth 
Circuit,  which  affirmed  the  decree  of  the  Circuit  Court,  Lennon  v. 
Lake  Shore,  etc.,  Railway  Co.,  22  U.  S.  App.  561,  whereupon  peti- 
tioner applied  for  and  obtained  a  writ  of  certiorari  from  this  court. 

Mr.  Justice  Brown,  after  stating  the  case,  delivered  the  opinion 
of  the  court. 

The  only  question  which  can  properly  be  raised  upon  this  writ  is 
whether  the  Circuit  Court  exceeded  its  jurisdiction  in  holding  the 
petitioner  for  a  contempt  and  in  imposing  upon  him  a  fine  therefor. 
We  are  not  at  liberty  to  consider  the  testimony,  or  to  inquire  whether 
the  facts,  as  they  appeared  upon  the  hearing,  justified  the  action  of 
the  Circuit  Court.    It  is  only  upon  the  theory  that  the  proceedings 


792  THE   THIRTEENTH   AMENDMENT  [CHAP.  XVI 

and  judgment  of  the  court  were  nullities  that  we  are  authorized  to 
reverse  its  action.  It  has  been  too  frequently  decided,  to  be  now 
open  to  question,  that  a  writ  of  habeas  corpus  cannot  be  made  use 
of  to  perform  the  functions  of  a  writ  of  error  or  an  appeal.  Ex 
parte  Kearney,  7  Wheat.  38,  43;  Ex  parte  Terry,  128  U.  S.  229; 
Ex  parte  Cuddy,  131  U.  S.  280;  Nielsen,  Petitioner,  131  U.  S.  176; 
Ex  parte  Tyler,  149  U.  S.  164,  167;  United  States  v.  Pridgeon,  153 
U.  S.  48. 

Acting  upon  this  theory,  the  petitioner  claims  that  the  Circuit 
Court  exceeded  its  jurisdiction  in  adjudging  him  guilty  of  contempt, 
for  the  reason  that  it  had  no  jurisdiction  of  the  original  bill,  because 
one  of  the  defendants  to  such  bill  was  a  citizen  of  the  same  state  with 
the  complainant;  ^  because  petitioner  was  not  a  party  to  the  suit 
and  was  never  served  with  a  subpoena  or  the  injunction;  and,  finally, 
because  it  was  beyond  the  jurisdiction  of  a  court  of  equity  to  compel 
the  performance  of  a  personal  contract  for  service.  .  .  . 

2.  The  facts  that  petitioner  was  not  a  party  to  such  suit,  nor 
served  with  process  of  subpoena,  nor  had  notice  of  the  application 
made  by  the  complainant  for  the  mandatory  injunction,  nor  was 
served  by  the  officers  of  the  court  with  such  injunction,  are  imma- 
terial, so  long  as  it  was  made  to  appear  that  he  had  notice  of  the 
issuing  of  an  injunction  by  the  court.  To  render  a  person  amenable 
to  an  injunction  it  is  neither  necessary  that  he  should  have  been  a 
party  to  the  suit  in  which  the  injunction  was  issued,  nor  to  have  been 
actually  served  with  a  copy  of  it,  so  long  as  he  appears  to  have  had 
actual  notice.  High  on  Injunctions,  sec.  1444;  Mead  v.  Norris,  21 
Wis.  310;  Wellesley  v.  Mornington,  11  Beav.  181. 

Conceding  the  question  whether  he  had  such  notice  in  this  case 
to  be  open  to  review  here,  we  are  of  opinion  that  upon  the  facts  ap- 
pearing in  this  record  this  question  must  be  answered,  as  it  was 
answered  in  the  court  below,  in  the  affirmative.  The  testimony 
upon  this  point  is  fully  set  forth  in  the  opinion  of  the  Circuit  Court, 
54  Fed.  Rep.  746,  757,  and  it  establishes  beyond  all  controversy  that 
Lennon  had  notice  and  knowledge  of  the  injunction. 

It  appears  that,  immediately  after  the  injunction  order  was  granted 
and  served  upon  the  Lake  Shore  Co.,  the  company  had  copies  of 
the  order  printed,  and  attached  thereto  a  notice,  signed  bj^  its  super- 
intendent, calling  the  attention  of  employes  to  the  injunction;  that 
printed  copies  of  the  injunction  and  notice  were  posted  on  all  the 
bulletin  boards  at  roundhouses  whore  engineers  took  their  engines, 
and  that  it  was  the  duty  of  engineers  to  examine  all  notices  so  posted 
before  starting  on  their  runs.  That  on  the  morning  of  the  18th  of 
March,  Lennon  was  upon  his  engine  at  Alexis,  making  a  run  with 
his  train  from  Monroe  to  Toledo;   that  on  his  arrival  at  Alexis,  and 

'  That  part  of  the  opinion  dealing  with  the  question  of  diversity  of  citizenship 
is  omitted.  The  Court  held  that  the  petitioner  had  no  vahd  ehiim  upon  this 
ground.  —  Ed. 


SECT.  II]  THE   STRIKE  793 

before  he  refused  to  receive  and  haul  the  Ann  Arbor  ear,  Mr.  Chill- 
cote,  an  agent  of  the  Lake  Shore  Co.,  handed  to  him  (Lennon)  a 
printed  copy  of  said  injunction  order,  and  the  notice  signed  by  the 
general  superintendent,  and  he  received  and  examined  them. 

Mr.  Chillcote  says:  "I  handed  him  these  papers  and  he  said  he 
had  seen  the  order;  that  it  was  posted  somewhere;  I  thinl^at  the 
roundhouse,  I  think  at  Detroit.  I  wouldn't  say  positive  as  to  that; 
but  he  said  he  had  seen  a  copy  of  it.  .  .  .  I  simply  handed  it  to 
him,  and  he  said,  '  We  understand  the  order,'  or  '  We  have  seen  the 
order,'  or  words  to  that  effect."  Chillcote  further  says:  "He  stated 
when  I  handed  him  the  order,  before  he  read  it,  that  he  understood 
it." 

Mr.  Keegan  testified  that  he  was  present  when  the  copy  of  the 
order  was  handed  to  Lennon,  and  that  he  said,  "I  have  seen  it  be- 
fore." This  occurred  about  10  o'clock  a.m.,  and  Lennon,  after  hav- 
ing the  copy  of  the  order  delivered  to  him  and  admitting  that  he  had 
seen  it  before  and  understood  it,  refused  to  receive  the  Ann  Arbor 
car  until  after  2.30  p.m.,  when  he  received  a  telegram  from  Mr. 
Watson,  an  officer  of  the  Brotherhood  of  Locomotive  Engineers, 
saying,  "You  can  come  along  and  handle  Ann  Arbor  cars,"  and  he 
then  at  once  proceeded  with  his  train  to  Toledo,  receiving  and  haul- 
ing the  Ann  Arbor  car. 

3.  To  the  objection  that  it  was  beyond  the  jurisdiction  of  a  court 
of  equity  to  compel  the  performance  of  a  personal  contract  for  serv- 
ice, and  to  interfere  by  mandatory  injunction  with  petitioner's  con- 
tract with  the  railway  company,  it  is  sufficient  to  say  that  nothing 
of  the  kind  was  attempted.  The  petitioner,  as  one  of  the  employes 
of  the  Lake  Shore  railway,  was  enjoined  from  refusing  to  extend  to 
the  Ann  Arbor  railway  such  facilities  for  the  interchange  of  traffic 
on  interstate  commerce  business  between  such  railwa3^s  as  were  en- 
joyed by  other  companies,  and  from  refusing  to  receive  from  the 
Ann  Arbor  Co.  cars  billed  from  points  in  one  State  to  points  in  other 
States.  No  attempt  was  made  to  interfere  with  petitioner's  contract 
with  his  own  company,  or  to  compel  a  continuance  of  his  service  in 
such  compan}'.  There  could  be  no  doubt  of  the  power  of  the  court 
to  grant  this  injunction,  which  bore  solely  upon  the  relations  of  the 
railway  companies  to  each  other.  It  was  alleged  in  the  bill  to  have 
been  a  part  of  the  regular  business  of  the  defendant  roads  to  inter- 
change traffic  with  the  Ann  Arbor  road,  and  the  injunction  was 
sought  to  prevent  an  arbitrarj^  discontinuance  of  this  custom.  Per- 
haps, to  a  certain  extent,  the  injunction  may  be  termed  mandatory, 
although  its  object  was  to  continue  the  existing  state  of  things,  and 
to  prevent  an  arbitraiy  breaking  off  of  the  current  business  connec- 
tions between  the  roads.  But  it  was  clearly  not  beyond  the  power 
of  a  court  of  equity,  which  is  not  always  limited  to  the  restraint  of 
a  contemplated  or  threatened  action,  but  may  even  require  affirma- 
tive action,  where  the  circumstances  of  the  case  demand  it.    Robin- 


794  THE   THIRTEENTH   AMENDMENT  [CHAP.  XVI 

son  V.  Lord  Byron,  1  Bro.  C.  C.  588;  Hervey  v.  Smith,  1  Kay  &  Johns. 
389;  Beadel  v.  Perry,  L.  R.  3  Eq.  465;  Whitecar  v.  Michenor,  37 
N.  J.  Eq.  6;  Broome  v.  New  York  &  New  Jersey  Telephone  Co., 
42  N.  J.  Eq.  141. 

It  appears  from  the  testimony  in  this  case  that  Lennon  was  on 
his  rilh  as  engineer  from  Detroit,  Michigan,  to  Air  Line  Junction, 
near  Toledo,  with  a  train  of  forty-five  cars.  Having  reached  an 
intermediate  station  called  Alexis,  he  was  ordered  to  take  on  an 
empty  car  from  the  Ann  Arbor  road.  He  refused  to  take  the  car 
into  the  train  and  held  the  train  there  for  five  hours,  and  then  pro- 
ceeded on  his  run  after  receiving  a  dispatch  from  the  chairman  of  a 
committee  of  the  Engineer  Brotherhood  instructing  him  to  "come 
along  and  handle  Ann  Arbor  cars."  When  he  first  received  the  order 
at  Alexis  to  take  the  Ann  Arbor  car  he  refused,  and  said,  "I  quit," 
but  afterwards  agreed  with  the  superintendent  of  the  division  to 
take  the  train  to  its  destination  if  the  order  to  take  the  boycotted 
car  was  countermanded.  Though  he  claimed  to  have  quit  at  Alexis 
at  about  10  o'clock  he  brought  his  train  to  its  destination,  and  when 
told  what  his  next  run  would  be  gave  no  notice  of  having  quit  or 
intending  to  quit. 

It  is  not  necessary  for  us  to  decide  whether  an  engineer  maj^  sud- 
denly and  without  notice  quit  the  service  of  a  railway  company  at 
an  intermediate  station  or  between  stations,  though  cases  may  be 
easily  imagined  where  a  sudden  abandonment  of  a  trainload  of  pas- 
sengers in  an  unfrequented  spot  might  imperil  their  safety  and  even 
their  lives.  It  is  sufficient,  in  the  present  case,  to  observe  that  the 
court  found,  upon  the  testimony,  that  the  petitioner  did  not  quit  in 
good  faith  in  the  morning,  but  intended  to  continue  in  the  company's 
service,  and  that  his  conduct  was  a  trick  and  device  to  avoid  obeying 
the  order  of  the  court. 

The  finding  of  the  court  in  this  particular  i?  not  open  to  review, 
and  hence  the  question  whether  the  court  has  power  to  compel  the 
performance  of  a  personal  contract  for  service  does  not  arise.  It  was 
a  question  for  the  court  to  determine  whether  the  petitioner's  action 
in  delaying  the  train  five  hours  at  Alexis  was  taken  in  pursuance  of 
a  determination  to  abandon  the  service  of  the  company,  or  for  the 
purpose  of  disobeying  the  lawful  injunction  of  the  court.  The  find- 
ing of  the  court  was  against  the  petitioner  upon  that  point. 

There  was  no  error  in  the  judgment  of  the  Court  of  Appeals,  and 
it  is,  therefore, 

Affirmed} 

•  Compare  Montgomery  Light  <fe  Power  Co.  v.  Montgomery  Traction  Co., 
191  Fed.  6.57,  m.V,  Fairfield  Floral  Co.  /-.  Bradbury,  87  Fed.  415;  Pokegama,  etc., 
Lumber  Co.  v.  Klamath  River  Lumber  &.  Imp.  Co.,  SG  Fed.  528,  530. 


SECT.  II]  THE   STRIKE  795 

B.     Restraining  Leaders  from  Calling  a  Strike 

UNITED  STATES  v.  FRANK  J.  HAYES,  et  al. 
United  States  District  Court,  Indiana.     1919 

lhi,reported 
See  supra,  p.  757,  for  the  injunction  issued  in  this  case.^ 

DELAWARE,  LACKAWANNA  &  WESTERN  RAILROAD  CO. 
V.  SWITCHMEN'S  UNION 

United  States  Circuit  Court,  W.  D.  New  York.     1907 

158  Fed.  541 

Hazel,  District  Judge.  This  motion  is  for  an  injunction  pen- 
dente lite  in  an  action  brought  by  the  Delaware,  Lackawanna  & 
Western  Railroad  Co.  against  the  Switchmen's  Union  of  North 
America,  F.  T.  Hawley,  its  president,  Buffalo  Lodge  No.  4  of  said 
Switchmen's  Union,  and  William  Jordan,  its  president,  together 
with  several  other  individuals  named  in  the  bill,  who  it  is  alleged 
combined  and  conspired  to  interfere  with  and  obstruct  complain- 
ant's business,  and  to  compel  or  induce  by  intimidation  the  switch- 
men employed  by  the  complainant  to  break  a  certain  subsisting 
service  contract,  dated  November  20,  1906,  which  expires  on  Jan- 
uary 1,  1908,  or  thereafter  upon  30  days'  notice  of  revision  given 
by  either  party.  The  contract  in  behalf  of  the  complainant  is  signed 
by  its  general  superintendent  and  in  behalf  of  the  switchmen  by 
R.  W.  Flynn,  general  chairman,  S.  E.  Heberling,  and  E.  M.  Rine. 
On  November  23,  1907,  an  ad  interim  injunction  was  granted  re- 
straining the  defendants  from  combining  and  conspiring  with  each 
other  to  induce  the  complainant's  switchmen  to  violate  their  serv- 
ice contract,  and  from  threatening,  compelling,  or  intimidating 
such  employes  and  members  of  the  Switchmen's  Union  to  disregard 
such  service  contract,  and  quit  the  employ  of  the  complainant.  All 
the  defendants  have  appeared  herein,  excepting  the  individual  de- 
fendants, Herberling  and  Flynn,  and  filed  a  joint  answer  denying 
the  alleged  combination  to  induce  a  strike,  and  averring  that  the 

1  Enjoining  Strike  Leaders  from  Calling  an  Illegal  Strike.  Although 
individual  workmen  may  not  ordinarily  be  enjoined  from  ceasing  to  work,  the 
Thirteenth  Amendment  will  not  as  a  rule  prevent  a  court  of  equity  from  enjoining 
strike  leaders  from  calling  an  illegal  strike.  Innumerable  cases  have  allowed  the 
issue  of  such  injunctions.  See,  for  instance,  Coons  v.  Chrystie,  24  Misc.  (N.  Y.) 
296;  Booth  v.  Burgess,  72  N.  J.  Eq.  181;  Toledo,  Ann  Arbor,  etc.,  Ry.  Co.  v. 
Penna.  Co.,  54  Fed.  730,  744-745. 

But  a  court  of  equity,  of  course,  has  no  power  to  enjoin  strike  leaders  from 
calling  a  strike  which  is  not  illegal,  or  which,  though  illegal,  threatens  no  irrepa- 
rable injury  to  interests  of  propeity  or  personality. 


796  THE   THIRTEENTH   AMENDMENT  [CHAP.  XVI 

employes  have  grievances,  and  that  the  vahdity  of  the  contract  is 
denied  by  them.  It  is  also  specifically  denied  that  any  of  the  de- 
fendants have  combined  and  conspired  to  interfere  with,  hinder,  or 
obstruct  the  business  of  the  complainant,  but  assert  that  the  switch- 
men in  the  employ  of  the  complainant  themselves  took  the  poll, 
and  that  if  a  strike  is  declared  they  intend  to  leave  the  employ  of 
the  complainant  in  a  peaceable  and  lawful  manner. 

A  motion  to  continue  the  injunction  during  the  pendency  of  this 
action  is  now  before  me.  I  have  given  careful  consideration  to  the 
subject  matter  and  affidavits  read  on  both  sides  and  the  authorities, 
and  am  constrained  to  deny  the  application  and  vacate  the  exist- 
ing restraining  order.  The  basis  for  the  exercise  of  the  injunctive 
powers  of  the  court  must  be  the  actual  or  threatened  interference 
with  the  property  rights  of  the  complainant,  and  to  invoke  such 
powers,  which  imply  the  punishment  for  an  infraction  of  the  order 
of  the  court,  the  unlawful  interference  or  threatened  interference 
must  be  satisfactorily  shown.  The  specific  allegations  of  the  bill 
alleging  interference  and  unlawful  inducement  to  strike  or  cease 
work  is  that  the  defendants,  under  the  direction  of  said  Hawley, 
the  president  of  the  Switchmen's  Union,  caused  a  poll  of  the  switch- 
men in  the  employ  of  the  complainant  to  be  taken  declaratory  of 
a  strike  or  no  strike,  and,  the  poll  having  been  in  favor  of  a  strike, 
that  the  said  Hawley  intends  to  conduct  the  same  pursuant  to  the 
constitution  and  by-laws  of  the  defendant  Switchmen's  Union  and 
its  subordinate  lodge  Buffalo  Lodge  No.  4.  The  bill  and  affidavits 
of  complainant  reveal  an  absence  of  sufficient  facts  by  which  the 
court  may  perceive  that  there  was  or  is  threatened  any  unlawful 
interference  with  complainant's  property  rights  by  way  of  induce- 
ment, enticement,  threats,  or  intimidation  to  cause  such  threatened 
strike.  That  workmen  may  strike  or  quit  their  employment  ad 
libitum  is  well  recognized  by  all  the  authorities,  and  that  they  may 
do  so  singly  or  in  concert,  even  though  it  be  in  violation  of  their 
service  contract,  has  also  been  held.  In  Hopkins  v.  Oxley  Stave 
Co.,  83  Fed.  912,  28  C.  C.  A.  99,  the  principle  is  thus  stated: 

"The  courts  have  invariably  upheld  the  right  of  individuals  to 
form  labor  organizations  for  the  protection  of  the  interests  of  the 
la))oring  classes,  and  have  denied  the  power  to  enjoin  the  members 
of  such  associations  from  withdrawing  peaceably  from  any  service, 
either  singly  or  in  a  body,  even  where  such  withdrawal  involves  a 
breach  of  contract." 

And  in  Arthur  v.  Oakes,  63  Fed.  310,  11  C.  C.  A.  209,  25  L.  R. 
A.  414,  an  earlier  case,  Mr.  Justice  Harlan,  sitting  in  the  Circuit 
Court  of  Appeals  for  the  Seventh  Circuit,  and  writing  the  opinion 
of  the  court,  says: 

"Those  employes  having  taken  service,  first  with  the  company, 
and  afterwards  with  the  receivers,  under  a  general  contract  of  em- 
ployment, which  did  not  limit  the  exercise  of  the  right  to  quit  the 


SECT.  II]  THE   STRIKE  797 

service,  their  peaceable  cooperation  as  the  result  of  friendly  argu- 
ment, persuasion,  or  conference  among  themselves,  in  asserting  the 
right  of  each  and  all  to  refuse  further  service  under  a  schedule  of 
reduced  wages,  would  not  have  been  illegal  and  criminal,  although 
they  may  have  so  acted  in  the  firm  belief  and  expectation  that  a 
simultaneous  quitting  without  notice  would  temporarily  incon- 
venience the  receivers  and  the  public." 

The  court  broadly  held  that  the  employes  in  good  faith  and  peace- 
ably had  the  right  to  leave  the  service  of  their  employer,  but  with- 
out injuring  or  interfering  with  the  free  action  of  others.  It  follows, 
therefore,  whenever  a  conspiracj^  is  alleged  that  it  must  be  shown 
that  the  intention  of  the  conspirators  was  to  inflict  wrong  upon  the 
complainant,  and  if  the  defendants  herein  acting  together  tried  to 
have  the  employes  break  their  contract,  or  urged  them  to  leave 
the  employ  of  the  complainant,  the  court  has  power  to  interfere. 
But  if  it  appear  that  the  workmen  upon  their  individual  responsibil- 
ity desire  to  breach  the  contract,  and  quit  their  employment  because 
of  alleged  grievances  or  any  other  reason,  a  court  of  equity  will 
not  interfere.    Such  being  the  law,  how  stands  this  case? 

The  only  justification  for  the  preliminary  injunction  is  the  al- 
legation that  the  defendants  incited  or  coerced  the  members  of 
the  union  employed  by  complainant  to  violate  their  contract  and 
incited  them  to  stop  work  in  a  body.  The  rule  is  conceded  by  coun- 
sel for  complainant  that  the  switchmen  can  strike  singly  or  col- 
lectively as  the  result  of  their  individual  action,  though  such  action 
may  have  been  induced  by  cooperation  and  lawful  persuasion.  The 
law  does  not  prohibit  workmen  from  holding  conferences,  and  dis- 
cussing their  grievances  with  the  object  and  purpose  of  striking  or 
ceasing  work  at  a  preconcerted  time,  and  it  is  only  when  such  ac- 
tion by  employes  is  accompanied  by  acts  of  violence,  threats,  undue 
persuasion,  or  intimidation,  or  such  wrongful  method  as  will  ir- 
reparably injure  the  aggrieved  party  that  resort  may  be  had  to  a 
court  of  equity  for  redress.  The  workmen  are  not  forbidden  by 
law  from  seeking,  taking,  or  following  the  advice  of  the  officers  of 
their  union  or  labor  organization.  As  bearing  upon  this  point,  the 
case  of  Thomas  v.  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.  (C.  C.)  62  Fed. 
803,  is  instructive.  In  that  case  Judge  Taft,  at  page  817  of  62  Fed., 
enunciated  the  doctrine  that  the  employes  have  labor  to  sell,  and 
accordingly  have  the  right  to  accumulate  a  fund  for  the  support  of 
those  who  engage  in  a  legal  strike.    He  saj^s: 

"They  have  the  right  to  appoint  officers  who  shall  advise  them 
as  to  the  course  to  be  taken  by  them  in  their  relations  with  their 
employers.  They  may  unite  with  other  unions.  The  officers  they 
appoint,  or  any  other  person  to  whom  they  may  choose  to  listen, 
may  advise  them  as  to  the  proper  course  to  be  taken  by  them  in 
regard  to  their  employment,  or,  if  they  choose  to  repose  such  author- 
it}'  in  any  one,  may  order  them,  on  pain  of  expulsion  from  their 


798  THE   THIRTEENTH  AMENDMENT  [CHAP.  XVI 

union,  peaceably  to  leave  the  employ  of  their  employer  because  any 
of  the  terms  of  the  emploj-ment  are  unsatisfactor3\" 

According  to  the  constitution  and  by-laws  of  the  defendant  Switch- 
men's Union  and  of  the  subordinate  lodge  no  strike  can  be  declared 
on  any  system  unless  two-thirds  of  the  members  on  such  system  shall 
first  have  voted  for  the  same  and  then  it  shall  be  conducted  by  the  in- 
ternational president.  Members  of  the  union  are  not  permitted  to  en- 
gage in  a  strike  or  encourage  any  other  member  to  engage  in  one 
without  the  consent  of  two-thirds  of  the  members  employed  on  that 
system  and  that  of  the  international  president.  The  affidavits  read 
on  this  motion  disclose  that  the  poll  of  the  members  has  already 
been  taken  in  favor  of  a  strike,  and  that  the  sanction  of  the  defendant 
Hawley  is  required  to  effectuate  the  same.  Is  the  consent  of  the 
president  in  connection  with  the  asserted  direction  by  him  to  take 
the  poll  such  an  incitement  or  inducement  to  strike  as  to  justify  a 
continuance  of  the  injunction?  I  think  not,  for,  as  already  mentioned, 
a  peaceable  strike  is  not  per  se  illegal,  and  the  defendant  Hawley 
acting  under  the  constitution  and  by-laws  of  the  union  could  at  the 
request  of  the  members  advise  the  employes  as  to  their  proper  and 
lawful  action.  Wabash  R.  Co.  v.  Hannahan  (C.  C),  121  Fed.  563. 
Under  the  by-laws  of  the  union  his  consent  to  strike  must  follow  the 
poll  to  strike,  and,  seemingly,  is  necessary  before  the  striking  mem- 
bers can  require  its  officers  to  levj^  assessments  upon  the  members  to 
pay  the  expenses  and  benefits  provided  for.  Reference  was  made 
by  complainant  to  a  printed  circular  letter  purporting  to  have  been 
issued  by  the  Switchmen's  Union  and  mailed  to  switchmen  through- 
out the  United  States  soliciting  membership  in  said  union  and  prac- 
tically inciting  a  strike.  Such  circular,  however,  is  not  entitled  to 
probative  weight,  its  origin  and  authorship  not  being  proven,  and  it 
appearing  to  have  been  promptly  and  seasonably  repudiated  by  the 
union.  In  the  absence,  therefore,  of  satisfactory  evidence  that  the 
defendants  have  unlawfully  combined  and  conspired  to  induce,  in- 
cite, or  intimidate  the  members  of  the  said  Union  to  strike  and 
maliciously  interfere  with  the  carrying  out  of  the  contract  between 
the  complainant  and  its  employes,  I  am  not  inclined  to  continue  the 
restraining  order.  .  .  . 

In  the  case  at  bar,  it  may  be  conceded  that  the  defendants  have 
influence  over  the  switchmen  employed  on  complainant's  road,  yet 
that  such  influence  has  been  improperly  exercised  in  view  of  the 
rule  of  law  permitting  employ(^s  to  strike  even  though  they  have 
entered  into  a  service  contract  is  not  clear.  If  I  were  satisfied  that 
the  men  were  unlawfully  instigated,  incited,  or  urged  by  the  de- 
fendants to  sever  their  service  contract  of  employment,  which  is 
claimed  to  remain  in  force  until  January  1,  1908,  or  thereafter  until 
either  party  gives  30  days'  notice  of  a  desired  revision,  I  would  not 
hesitate  to  grant  the  injunction.  But  even  assuming  that  the  poll  of 
the  employes  was  directed  by  the  defendants,  as  claimed  in  the  bill,  it 


SECT.  II]  THE    STRIKE  799 

cannot  be  held  as  a  matter  of  law,  in  the  absence  of  satisfactory  proof 
of  a  combination  or  conspiracy  to  break  a  valid  contract,  that  such 
acts  on  their  part,  standing  alone,  presume  unlawful  incitement,  per- 
suasion, or  coercion  of  the  members  of  the  union,  to  engage  in  an  il- 
legal strike. 

It  is  further  claimed  by  the  complainant  that  the  correspondence  in 
evidence  passing  between  it  and  various  officers  of  the  union,  on  the 
subject  of  a  conference  to  discuss  the  grievances  of  the  switchmen 
and  the  request  for  increased  wages,  should  be  considered  as  showing 
that  the  defendants  initiated  the  alleged  dissatisfaction  among  the 
employes  with  a  wrongful  intention  to  injure  the  complainant  in  its 
business.  But  upon  this  point  I  am  inclined  to  think  that  the  de- 
fendants had  the  right  to  select  a  committee  to  request  a  conference 
and  to  represent  them,  and,  moreover,  they  could,  if  they  chose  to 
do  so,  delegate  an  officer  of  the  Switchmen's  Union  to  represent 
them  and  to  advocate  an  adjustment  of  their  grievances  and  diffi- 
culties, with  a  view  of  effectuating  an  amicable  arrangement. 

The  motion  is  denied. 


CHAPTER   XVII 

REGULATORY  LABOR   LEGISLATION  ^ 

Section  1.     General  Principles.     The  Fourteenth  Amendment 
FOURTEENTH  AMENDMENT 

U.  S.  Constitution,  Amendment  XIV,  Section  I 

No  State  shall  make  or  enforce  any  law  which  shall  abridge  the 
privileges  or  immunities  of  citizens  of  the  United  States;  nor  shall 
any  State  deprive  any  person  of  life,  liberty,  or  property,  without 
due  process  of  law;  nor  deny  to  any  person  within  its  jurisdiction 
the  equal  protection  of  the  laws. 

NOBLE  STATE  BANK  v.  HASKELL 

Supreme  Court  of  the  United  States.     1911 

219  U.  S.  104 

Mr.  Justice  Holmes  delivered  the  opinion  of  the  court. 

This  is  a  proceeding  against  the  Governor  of  the  State  of  Okla- 
homa and  other  officials  who  constitute  the  State  Banking  Board, 
to  prevent  them  from  levying  and  collecting  an  assessment  from 
the  plaintiff  under  an  act  approved  December  17,  1907.  This  act 
creates  the  Board  and  directs  it  to  levy  ui:)on  every  bank  existing 
under  the  laws  of  the  State  an  assessment  of  one  per  cent  of  the 
bank's  average  daily  deposits,  with  certain  deductions,  for  the  pur- 
pose of  creating  a  Depositors'  Guaranty  Fund.  These  are  provisos 
for  keeping  up  the  fund,  and  by  an  act  passed  March  11,  1909,  since 
the  suit  was  l)egun,  the  assessment  is  to  be  five  per  cent.  The  pur- 
pose of  the  fund  is  shown  by  its  name.  It  is  to  secure  the  full  n^pay- 
ment  of  deposits.     When  a  bank  becomes  insolvent  and  goes  into 

'  The  literature  upon  this  suliject  is  vohuiiinous.  The  student  should  partic- 
ularly consult,  Pound,  Liberty  of  Contract,  IS  Yale  Law  Jour.  4.'i4;  Frankfurter, 
Kealisin  and  Hours  of  Labor,  29  H.  L.  11.  353.  A  carefully  .selected  bibliography 
will  be  found  in  C!onunons  &  Andrews,  Labor  LcKislation  (1920  ed.),  i)p.  r)09-514, 
517-.'J24.  KcfcTence  may  also  be  made  to  Powell,  Collective  Bargaining;,  33  Pol. 
Sci.  (^uart.  390;  Taussig,  Minimum  Wages  for  Women,  30  (^uart.  .lour,  of  Econ. 
411;  Douglas,  American  Minimum  Wage  Laws  at  Work,  9  Amer.  Econ.  Rev.  701 ; 
Lindley  D.  (-lark,  Mininunn  Wage  Laws  of  the  United  States,  U.  S.  Bureau  of 
Labor  Statistics,  Bull(;tin  Xo.  28.5  (1921).  See  also,  Jo.sephine  Cioldmark,  Fatigue 
and  P^fficiency;  Robert  (i.  Paterson,  Wage-payment  Legislation  in  the  United 
States,  U.  S.  Bureau  of  Labor  Statistics,  Bulletin  No.  229  (1918). 

800 


SECT.  I]  GENERAL   PRINCIPLES  801 

the  hands  of  tho  Bank  Commissionor,  if  its  cash  immediately  avail- 
able is  not  enough  to  pay  depositors  in  full,  the  Banking  Board  is  to 
draw  from  the  Depositors'  Guaranty  Fund  (and  from  additional 
assessments  if  required)  the  amount  needed  to  make  up  the  deficiency. 
A  lien  is  reserved  upon  the  assets  of  the  failing  bank  to  make  good  the 
sum  thus  taken  from  the  fund.  The  plaintiff  says  that  it  is  solvent 
and  does  not  want  the  help  of  the  Guaranty  Fund,  and  that  it  can- 
not be  called  upon  to  contribute  toward  .securing  or  paying  the 
depositors  in  other  banks  consistently  with  Article  I,  sec.  10,  and  the 
Fourteenth  Amendment  of  the  Constitution  of  the  United  States. 
The  petition  was  dismissed  on  demurrer  by  the  Supreme  Court  of 
the  State.    22  Okla.  48. 

The  reference  to  Article  I,  sec.  10,  does  not  strengthen  the  plain- 
tiff's bill.  The  only  contract  that  it  relies  upon  is  its  charter.  That 
is  subject  to  alteration  or  repeal,  as  usual,  so  that  the  obligation 
hardly  could  be  said  to  be  impaired  by  the  act  of  1907  before  us, 
unless  that  statute  deprives  the  plaintiff  of  liberty  or  property  with- 
out due  process  of  law.  See  Sherman  v.  Smith,  1  Black,  587.  Whether 
it  does  so  or  not  is  the  only  question  in  the  case. 

In  answering  that  question  we  must  be  cautious  about  pressing 
the  broad  words  of  the  Fourteenth  Amendment  to  a  drily  logical 
extreme.  Many  laws  which  it  would  be  vain  to  ask  the  court  to 
overthrow  could  be  shown,  easily  enough,  to  transgress  a  scholastic 
interpretation  of  one  or  another  of  the  great  guarantees  in  the  Bill 
of  Rights.  They  more  or  less  limit  the  liberty  of  the  individual  or 
they  diminish  property  to  a  certain  extent.  We  have  few  scientifically 
certain  criteria  of  legislation,  and  as  it  often  is  difficult  to  mark  the 
line  where  what  is  called  the  police  power  of  the  States  is  limited 
by  the  Constitution  of  the  United  States,  judges  should  be  slow  to 
read  into  the  latter  a  nolumus  mutare  as  against  the  law-making 
power. 

The  substance  of  the  plaintiff's  argument  is  that  the  assessment 
takes  private  property  for  private  use  without  compensation.  And 
while  we  should  assume  that  the  plaintiff  would  retain  a  reversionary 
interest  in  its  contribution  to  the  fund  so  as  to  be  entitled  to  a  return 
of  what  remained  of  it  if  the  purpose  were  given  up  (see  Receiver  of 
Danby  Bank  v.  State  Treasurer,  39  Vt.  92,  98),  still  there  is  no  deny- 
ing that  by  this  law  a  portion  of  its  property  might  be  taken  without 
return  to  pay  debts  of  a  failing  rival  in  business.  Nevertheless,  not- 
withstanding the  logical  form  of  the  objection,  there  are  more  power- 
ful considerations  on  the  other  side.  In  the  first  place  it  is  established 
by  a  series  of  cases  that  an  ulterior  public  advantage  may  justify  a 
comparatively  insignificant  taking  of  private  property  for  what,  in 
its  immediate  purpose,  is  a  private  use.  Clark  v.  Nash,  198  U.  S. 
361.  Stricklev  v.  Highland  Bov  Mining  Co.,  200  U.  S.  527,  531. 
Offield  V.  New  York,  New  Haven  &  Hartford  R.  R.  Co.,  203  U.  S. 
372.    Bacon?;.  Walker,  204  U.S.  311,315.    And  in  the  next,  it  would 


802  REGULATORY  LABOR  LEGISLATION         [CHAP.  XVII 

seem  that  there  may  be  other  cases  beside  the  every  day  one  of  taxa- 
tion, in  which  the  share  of  each  party  in  the  benefit  of  a  scheme  of 
mutual  protection  is  sufficient  compensation  for  the  correlative 
burden  that  it  is  compelled  to  assume.  See  Ohio  Oil  Co.  i'.  Indiana, 
177  U.  S.  190.  At  least,  if  we  have  a  case  within  the  reasonable 
exercise  of  the  police  power  as  above  explained,  no  more  need  be 
said. 

It  may  be  said  in  a  general  way  that  the  police  power  extends  to 
all  the  great  public  needs.    Camfield  v.  United  States,  167  U.  S.  518. 
It  may  be  put  forth  in  aid  of  what  is  sanctioned  by  usage,  or  held  by 
the  prevailing  morality  or  strong  and  preponderant  opinion  to  be 
greatly  and  immediately  necessary  to  the  public  welfare.     Among 
matters  of  that  sort  probabh"  few  would  doubt  that  both  usage 
and  preponderant  opinion  give  their  sanction  to  enforcing  the  pri- 
mary conditions  of  successful  commerce.     One  of  those  conditions  at 
the  present  time  is  the  possibility  of  payment  bj^  checks  drawn 
against  bank  deposits,  to  such  an  extent  do  checks  replace  currenc}- 
in  daily  business.     If  then  the  legislature  of  the  State  thinks  that 
the  public  welfare  requires  the  measure  under  consideration,  analog}'^ 
and  principle  are  in  favor  of  the  power  to  enact  it.    Even  the  primary 
object  of  the  required  assessment  is  not  a  private  benefit  as  it  was  in 
the  cases  above  cited  of  a  ditch  for  irrigation  or  a  railway  to  a  mine, 
but  it  is  to  make  the  currency  of  checks  secure,  and  by  the  same 
stroke  to  make  safe  the  almost  compulsory  resort  of  depositors  to 
banks  as  the  only  available  means  for  keeping  money  on  hand.    The 
priority  of  claim  given  to  depositors  is  incidental  to  the  same  object 
and  is  justified  in  the  same  way.     The  power  to  restrict  liberty'  by 
fixing  a  minimum  of  capital  required  of  those  who  would  engage  in 
banking  is  not  denied.    The  power  to  restrict  investments  to  securi- 
ties regarded  as  relatively  safe  seems  equally  plain.     It  has  been 
held,  we  do  not  doubt  rightly,  that  inspections  may  be  required  and 
the  cost  thrown  on  the  bank.    See  Charlotte,  Columbia  &  Augusta 
R.  R.  Co.  V.  Gibbes,  142  U.  S.  386.     The  power  to  compel,  before- 
hand, cooperation,  and  thus,  it  is  believed,  to  make  a  failure  un- 
likely and  a  general  panic  almost  impossible,  must  be  recognized, 
if  government  is  to  do  its  proper  work,  unless  we  can  say  that  the 
means  have  no  reasonable  relation  to  the  end.    Gundling  v.  Chicago, 
177  U.  S.  183,  188.    So  far  is  that  from  being  the  case  that  the  device 
is  a  familiar  one.    It  was  adopted  by  some  States  the  better  part  of 
a  century  ago,  and  seems  never  to  have  been  questioned  until  now. 
Receiver  of  Danby  Bank  v.  State  Treasurer,  39  Vt.  92.     People  v. 
Walker,  17  N.  Y.  502.    Recent  cases  going  not  less  far  are  Lemieux 
V.  Young,  211  U.  S.  489,  496.    Kidd,  Dater  and  Price  Co.  v.  Mussel- 
man  Grocer  Co.,  217  U.  S.  461. 

It  is  asked  whether  the  State  could  re(juire  all  corporations  or  all 
grocers  to  help  to  guarantee  each  other's  solvency,  and  where  we  are 
going  to  draw  the  line.    But  the  last  is  a  futile  question,  and  we  will 


SECT.  I]  GENERAL   PRINCIPLES  803 

answer  the  others  when  they  arise.  With  regard  to  tlie  police  power, 
as  elsewhere  in  the  law,  lines  are  pricked  out  by  the  gradual  approach 
and  contact  of  decisions  on  the  opposing  sides.  Hudson  County 
Water  Co.  v.  McCarter,  209  U.  S.  349,  355.  It  will  serve  as  a  datum 
on  this  side,  that  in  our  opinion  the  statute  before  us  is  well  within 
the  State's  constitutional  power,  while  the  use  of  the  public  credit 
on  a  large  scale  to  help  individuals  in  business  has  been  held  to  be 
beyond  the  line.  Loan  Association  v.  Topeka,  20  Wall.  655.  Lowell 
V.  Boston,  111  Massachusetts,  454. 

The  question  that  we  have  decided  is  not  much  helped  by  pro- 
pounding the  further  one,  whether  the  right  to  engage  in  banking 
is  or  can  be  made  a  franchise.  But  as  the  latter  question  has  some 
bearing  on  the  former  and  as  it  will  have  to  be  considered  in  the 
following  cases,  if  not  here,  we  will  dispose  of  it  now.  It  is  not  an- 
swered by  citing  authorities  for  the  existence  of  the  right  at  common 
law.  There  are  many  things  that  a  man  might  do  at  common  law 
that  the  States  may  forbid.  He  might  embezzle  until  a  statute  cut 
down  his  liberty.  We  cannot  say  that  the  public  interests  to  which 
we  have  adverted,  and  others,  are  not  sufficient  to  warrant  the  State 
in  taking  the  whole  business  of  banking  under  its  control.  On  the 
contrary  we  are  of  opinion  that  it  may  go  on  from  regulation  to 
prohibition  except  upon  such  conditions  as  it  may  prescribe.  In 
short,  when  the  Oklahoma  legislature  declares  by  implication  that 
free  banking  is  a  public  danger,  and  that  incorporation,  inspection 
and  the  above-described  cooperation  are  necessary  safeguards,  this 
court  certainly  cannot  say  that  it  is  wrong.  North  Dakota  v.  Wood- 
niansee,  1  N.  Dak.  246.  Brady  v.  Mattern,  125  Iowa,  158.  Weed 
V.  Bergh,  141  Wis.  569.  Commonwealth  v.  Vrooman,  164  Pa.  306. 
Myers  v.  Irwin,  2  S.  &  R.  368.  Myers  v.  Manhattan  Bank,  20  Ohio, 
283,  302.  Attorney  General  v.  Utica  Insurance  Co.,  2  Johns.  Ch.  371, 
377.  Some  further  details  might  be  mentioned,  but  we  deem  them 
unnecessary.     Of  course  objections  under  the  state  constitution  are 

not  open  here.  ,    ,         ^    ^        , , 

Judgment  ajjirmea,} 


CENTRAL  LUMBER  CO.  v.  SOUTH  DAKOTA 
Supreme  Court  of  the  United  States.     1912 
226  U.  S.  157 
Mr.  Justice  Holmes  delivered  the  opinion  of  the  court. 
The  plaintiff  in  error  was  found  guilty  of  unfair  discrimination 
under  Session  Laws  of  South  Dakota  for  1907,  c.  131,  and  was  sen- 
tenced to  a  fine  of  two  hundred  dollars  and  costs.     It  oljjected  in 
due  form  that  the  statute  was  contrary  to  the  Fourteenth  Amend- 
ment, but  on  appeal  the  judgment  of  the  trial  court  was  sustained. 

'  A  motion  for  leave  to  file  petition  for  rehearing  was  made  and  denied.     219 
U.  S.  575. 


804  REGULATORY  LABOR  LEGISLATION         [CHAP.  XVII 

24  So.  Dak.  136.  By  the  statute  anyone  "Engaged  in  the  produc- 
tion, manufacture  or  distribution  of  any  commodity  in  general  use, 
that  intentionally,  for  the  purpose  of  destroying  the  competition  of 
any  regular,  established  dealer  in  such  commodity,  or  to  prevent 
the  competition  of  any  person  who  in  good  faith  intends  and  at- 
tempts to  become  such  dealer,  shall  discriminate  between  different 
sections,  communities,  or  cities  of  this  state,  by  selling  such  com- 
modity at  a  lower  rate  in  one  section  .  .  .  than  such  person  .  .  . 
charges  for  such  commodity  in  another  section,  .  .  .  after  equaliz- 
ing the  distance  from  the  point  of  production,"  etc.,  shall  be  guilty 
of  the  crime  and  liable  to  the  fine. 

The  subject-matter,  like  the  rest  of  the  criminal  law,  is  under  the 
control  of  the  legislature  of  South  Dakota,  by  virtue  of  its  general 
powers,  unless  the  statute  conflicts  as  alleged  with  the  Constitution 
of  the  United  States.  The  grounds  on  which  it  is  said  to  do  so  are 
that  it  denies  the  equal  protection  of  the  laws,  because  it  affects  the 
conduct  of  only  a  particular  class  —  those  selling  goods  in  two  places 
in  the  State  —  and  is  intended  for  the  protection  of  only  a  particular 
class  —  regular  established  dealers ;  and  also  because  it  unreasonably 
limits  the  liberty  of  people  to  make  such  bargains  as  thej^  like. 

On  the  first  of  these  points  it  is  said  that  an  indefensible  classifica- 
tion may  be  disguised  in  the  form  of  a  description  of  the  acts  con- 
stituting the  offence,  and  it  is  urged  that  to  punish  selling  goods  in 
one  place  lower  than  at  another  in  effect  is  to  select  the  class  of  dealers 
that  have  two  places  of  business  for  a  special  liability,  and  in  real 
fact  is  a  blow  aimed  at  those  who  have  several  lumber  yards  along 
a  line  of  railroad,  in  the  interest  of  independent  dealers.  All  com- 
petition, it  is  added,  imports  an  attempt  to  destroy  or  prevent  the 
competition  of  rivals,  and  there  is  no  difference  in  principle  between 
the  prohibited  act  and  the  ordinary  efforts  of  traders  at  a  single 
place.  The  premises  may  be  conceded  without  accepting  the  con- 
clusion that  this  is  an  unconstitutional  discrimination.  If  the  legis- 
lature shares  the  now  prevailing  belief  as  to  what  is  public  policy 
and  finds  that  a  particular  instrument  of  trade  war  is  being  used 
against  that  policy  in  certain  cases,  it  may  direct  its  law  against 
what  it  deems  the  evil  as  it  actually  exists  without  covering  the 
whole  field  of  possible  abuses,  and  it  may  do  so  none  the  less  that  the 
forbidden  act  does  not  differ  in  kind  from  those  that  are  allowed. 
Lindsley  v.  Natural  Carbonic  Gas  Co.,  220  U.  S.  61,  81.  Missouri 
Pacific  Ry.  Co.  v.  Mackey,  127  U.  S.  205. 

That  is  not  the  arbitrary  selection  that  is  condemned  in  such 
cases  as  Southern  Ry.  Co.  r.  Greene,  216  U.  S.  400.  The  Four- 
teenth Amendment  does  not  prohibit  legislation  special  in  character. 
Magoun  v.  Illinois  Trust  &  Savings  Bank,  170  IT.  S.  283,  204.  It 
does  not  prohibit  a  State  from  carrying  out  a  policy  that  cannot  be 
pronounced  purely  arbitrary,  by  taxation  or  penal  laws.  Orient 
Insurance  Co.  v.  Daggs,  172  U.  S.  557,  562.    Quong  Wing  v.  Kirken- 


SECT.  I]  GENERAL  PRINCIPLES  805 

dall,  223  U.  S.  59,  62.  If  a  class  is  deemed  to  present  a  conspicuous 
example  of  what  the  legislature  seeks  to  prevent,  the  Fourteenth 
Amendment  allows  it  to  be  dealt  with  although  otherwise  and  merely 
logically  not  distinguishable  from  others  not  embraced  in  the  law. 
Carroll  v.  Greenwich  Ins.  Co.,  199  U.  S.  401,  411.  We  must  assume 
that  the  legislature  of  South  Dakota  considered  that  people  selling 
in  two  places  made  the  prohibited  use  of  their  opportunities  and  that 
such  use  was  harmful,  although  the  usual  efforts  of  competitors  were 
desired.  It  might  have  been  argued  to  the  legislature  with  more 
force  than  it  can  be  to  us  that  recoupment  in  one  place  of  losses  in 
another  is  merely  an  instance  of  financial  ability  to  compete.  If 
the  legislature  thought  that  that  particular  manifestation  of  ability 
usually  came  from  great  corporations  whose  power  it  deemed  exces- 
sive and  for  that  reason  did  more  harm  than  good  in  their  State, 
and  that  there  was  no  other  case  of  frequent  occurrence  where  the 
same  could  be  said,  we  cannot  review  their  economics  or  their  facts. 
That  the  law  embodies  a  widespread  conviction  appears  from  the 
decisions  in  other  States.  State  v.  Drayton,  82  Neb.  254.  State  v. 
Standard  Oil  Co.,  Ill  Minn.  85;  126  N.  W.  Rep.  527.  State  v.  Fair- 
mont Creamery,  153  la.  702 ;  133  N.  W.  Rep.  895.  State  v.  Bridgeman 
&  Russell  Co.,  117  Minn.  186;   134  N.  W.  Rep.  496. 

What  we  have  said  makes  it  unnecessary  to  add  much  on  the  second 
point,  if  open,  that  the  law  is  made  in  favor  of  regular  established 
dealers  —  but  the  short  answer  is  simply  to  read  the  law.  It  extends 
on  its  face  also  to  those  who  intend  to  become  such  dealers.  If  it 
saw  fit  not  to  grant  the  same  degree  of  protection  to  parties  making 
a  transitory  incursion  into  the  business,  we  see  no  objection.  But 
the  Supreme  Court  says  that  the  statute  is  aimed  at  preventing  the 
creation  of  a  monopoly  by  means  likely  to  be  employed,  and  cer- 
tainly we  should  read  the  law  as  having  in  view  ultimately  the  benefit 
of  buyers  of  the  goods. 

Finally,  as  to  the  statute's  depriving  the  plaintiff  in  error  of  its 
liberty  because  it  forbids  a  certain  class  of  dealings,  we  think  it 
enough  to  say  that  as  the  law  does  not  otherwise  encounter  the 
Fourteenth  Amendment,  it  is  not  to  be  disturbed  on  this  ground. 
The  matter  has  been  discussed  so  often  in  this  court  that  we  simply 
refer  to  Chicago,  Burlington  &  Quincy  R.  R.  Co.  v.  McGuire,  219 
U.  S.  549,  567,  568,  and  the  cases  there  cited  to  illustrate  how  much 
power  is  left  in  the  States.  See  also  Grenada  Lumber  Co.  v.  ]Mis- 
sissippi,  217  U.  S.  433,  442.  Lemieux  v.  Young,  211  U.  S.  489,  496. 
Otis  V.  Parker,  187  U.  S.  606,  609. 

Judgment  affirmed.^ 

*  See  also,  International  Harvester  Co.  v.  Missouri,  234  U.  S.  199. 


806  REGULATORY  LABOR  LEGISLATION         [CHAP.  XVII 


Section  2.     Laws  Regulating  the  Employment  of  Women 
and  Children  ^ 

PEOPLE  V.  WILLIAMS 

Court  of  Appeals  of  New  York.     1907 

189  N.  Y.  131 

Gray,  J.  The  defendant  was  arrested  and  convicted  upon  the 
charge  of  having  violated  the  provisions  of  sec.  384^  of  the  Penal 
Code.  This  section  makes  it  a  misdemeanor  on  the  part  of  anj'-  per- 
son not  complying  with  the  provisions  of  article  6  of  the  Labor  Law 
relating  to  factories.  The  provision  of  the  Labor  Law  now  in  ques- 
tion is  contained  in  sec.  77;  which  is  entitled:  "Hours  of  labor  of 
minors  and  women"  and  reads  that  ''No  minor  under  the  age  of 
eighteen  years,  and  no  female  shall  be  employed,  permitted  or  suf- 
fered to  work  in  any  factory  in  this  state  before  six  o'clock  in  the 
morning,  or  after  nine  o'clock  in  the  evening  of  any  day;  or  for  more 
than  ten  hours  in  any  one  day  except  to  make  a  shorter  work  day 
on  the  last  day  of  the  week;  or  for  more  than  sixty  hours  in  any 
one  week,  or  more  hours  in  any  one  week  than  will  make  an  average 
of  ten  hours  per  day  for  the  whole  number  of  days  so  worked." 
(L.  1903,  ch.  184,  sec.  2.)  The  information  and  the  proof  were  that 
a  female,  named  Katie  Mead,  over  twenty-one  years  of  age,  was 
found  by  the  factory  inspector  at  work  in  a  book  binding  establish- 
ment, in  the  city  of  New  York,  at  twenty  minutes  after  ten  o'clock 
in  the  evening.  There  was  no  complaint  with  respect  to  the  char- 
acter, or  construction,  of  the  building  and  the  defendant's  guilt  was 
rested,  solely,  upon  his  failure  to  observe  the  provision  of  the  statute 
against  a  female  being  at  work  after  nine  o'clock  in  the  evening.  If 
the  inhibition  against  employing  a  female  in  any  factory  after  that 
hour  was  a  valid  act  of  legislation,  then  the  defendant  came  within 
its  operation  and  he  was  amenable  to  punishment.  After  the  de- 
fendant had  been  found  guilty,  the  trial  court  granted  his  motion 
in  arrest  of  judgment  and  discharged  him;  holding  that  the  legisla- 
tive enactment  was  unconstitutional.  The  justices  of  the  Appellate 
Division,  in  the  first  department,  by  a  divided  vote,  have  affirmed 
the  order  of  the  trial  court. 

In  my  judgment,  the  determination  below  was  correct.  I  think 
that  the  legislature,  in  preventing  the  employment  of  an  adult 
woman  in  a  factory,  and  in  prohil)iting  her  to  work  therein,  before 
six  o'clock  in  the  morning,  or  aft(M'  nine  o'clock  in  the  evening,  has 
overstepped  the  limits  set  by  the  Constitution  of  the  state  to  the 
exercise  of  the  power  to  interfere  with  the  rights  of  citizens.  The 
fundamental  law  of  the  state,  as  embodied  in  its  Constitution,  pro- 

^  See  references  in  note  1,  p.  800,  supra. 


SECT.  II]  WOMEN  AND   CHILDREN  807 

vides  that  "no  person  shall  ...  be  deprived  of  life,  liberty  or  prop- 
erty without  due  process  of  law."  (Art.  1,  sec.  6.)  The  provisions 
of  the  State  and  of  the  Federal  Constitutions  protect  every  citizen 
in  the  right  to  pursue  any  lawful  employment  in  a  lawful  manner. 
He  enjoys  the  utmost  freedom  to  follow  his  chosen  pursuit  and  any 
arbitrary  distinction  against,  or  deprivation  of,  that  freedom  by  the 
legislature  is  an  invasion  of  the  constitutional  guaranty.  Under 
our  laws  men  and  women  now  stand  alike  in  their  constitutional 
rights  and  there  is  no  warrant  for  making  any  discrimination  be- 
tween them  with  respect  to  the  liberty  of  person,  or  of  contract.  It 
is  claimed,  however,  in  this  case,  that  the  enactment  in  question 
can  be  justified  as  an  exercise  of  the  police  power  of  the  state;  hav- 
ing for  its  purpose  the  general  welfare  of  the  state  in  a  measure  for 
the  preservation  of  the  health  of  the  female  citizens.  It  is  to  be  ob- 
served that  it  is  not  a  regulation  of  the  number  of  hours  of  labor  for 
working  women;  the  enactment  goes  far  beyond  this.  It  attempts 
to  take  away  the  right  of  a  woman  to  labor  before  six  o'clock  in  the 
morning,  or  after  nine  o'clock  in  the  evening,  without  any  reference 
to  other  considerations.  In  providing  that  "no  female  shall  be  em- 
ployed, permitted,  or  suffered  to  work  in  any  factory  in  this  state 
before  six  o'clock  in  the  morning,  or  after  nine  o'clock  in  the  evening 
of  any  day,"  she  is  prevented,  however  wilHng,  from  engaging  herself 
in  a  lawful  employment  during  the  specified  periods  of  the  twenty-four 
hours.  Except  as  to  women  under  twenty-one  years  of  age,  this  was 
the  first  attempt  on  the  part  of  the  state  to  restrict  their  Uberty  of 
person,  or  their  freedom  of  contract,  in  the  pursuit  of  a  vocation. 
I  find  nothing  in  the  language  of  the  section  which  suggests  the  pur- 
pose of  promoting  health,  except  as  it  might  be  inferred  that  for  a 
woman  to  work  during  the  forbidden  hours  of  night  would  be  un- 
heal thful.  If  the  inhibition  of  the  section  in  question  had  been 
framed  to  prevent  the  ten  hours  of  work  from  being  performed  at 
night,  or  to  prolong  them  beyond  nine  o'clock  in  the  evening,  it 
might,  more  readily,  be  appreciated  that  the  health  of  women  was 
the  matter  of  legislative  concern.  That  is  not  the  effect,  nor  the 
sense,  of  the  provision  of  the  section  with  which,  alone,  we  are  deal- 
ing. It  was  not  the  case  upon  which  this  defendant  was  convicted. 
If  this  enactment  is  to  be  sustained,  then  an  adult  woman,  although 
a  citizen  and  entitled  as  such  to  all  the  rights  of  citizenship  under 
our  laws,  may  not  be  employed,  nor  contract  to  work,  in  any  factory 
for  any  period  of  time,  no  matter  how  short,  if  it  is  within  the  pro- 
hibited hours;  and  this,  too,  without  any  regard  to  the  healthful- 
ness  of  the  emplo\niient.  It  is  clear,  as  it  seems  to  me,  that  this 
legislation  cannot,  and  should  not,  be  upheld  as  a  proper  exercise 
of  the  police  power.  It  is,  certainly,  discriminative  against  female 
citizens,  in  denying  to  them  equal  rights  with  men  in  the  same  pur- 
suit. The  courts  have  gone  very  far  in  upholding  legislative  enact- 
ments, framed  clearly  for  the  welfare,  comfort  and  health  of  the 


808  REGULATORY  LABOR  LEGISLATION         [CHAP,  XVII 

community,  and  that  a  wide  range  in  the  exercise  of  the  poHce  power 
of  the  state  should  be  conceded,  I  do  not  deny;  but,  when  it  is  sought 
under  the  guise  of  a  labor  law,  arbitrarily,  as  here,  to  prevent  an 
adult  female  citizen  from  working  at  any  time  of  the  day  that  suits 
her,  I  think  it  is  time  to  call  a  halt.  It  arbitrarily  deprives  citizens 
of  their  right  to  contract  with  each  other.  The  tendency  of  legisla- 
tures, in  the  form  of  regulatory  measures,  to  interfere  with  the  lawful 
pursuits  of  citizens  is  becoming  a  marked  one  in  this  country,  and  it 
behooves  the  courts,  firmly  and  fearlessly,  to  interpose  the  barriers 
of  their  judgments,  when  invoked  to  protect  against  legislative  acts, 
plainly  transcending  the  powers  conferred  by  the  Constitution  upon 
the  legislative  body. 

In  this  section  of  the  Labor  Law,  it  will  be  observed  that  women 
are  classed  with  minors  under  the  age  of  eighteen  years;  for  which 
there  is  no  reason.  The  right  of  the  state,  as  parens  patria',  to  restrict, 
or  to  regulate,  the  labor  and  employment  of  children  is  unquestion- 
able; but  an  adult]  female  is  not  to  be  regarded  as  a  ward  of  the 
state,  or  in  any  other  light  than  the  man  is  regarded,  when  the  ques- 
tion relates  to  the  business  pursuit  or  calling.  She  is  no  more  a 
ward  of  the  state  than  is  the  man.  She  is  entitled  to  enjoy,  un- 
molested, her  liberty  of  person,  and  her  freedom  to  work  for  whom 
she  pleases,  where  she  pleases  and  as  long  as  she  pleases,  within  the 
general  limits  operative  on  all  persons  alike,  and  shall  we  say  that 
this  is  valid  legislation,  which  closes  the  doors  of  a  factory  to  her 
before  and  after  certain  hours?    I  think  not.  .  .  . 

So  I  think,  in  this  case,  that  we  should  say,  as  an  adult  female  is 
in  no  sense  a  ward  of  the  state,  that  she  is  not  to  be  made  the  special 
object  of  the  exercise  of  the  paternal  power  of  the  state  and  that  the 
restriction,  here  imposed  upon  her  privilege  to  labor,  violates  the 
constitutional  guarantees.  In  the  gradual  course  of  legislation 
upon  the  rights  of  a  woman,  in  this  state,  she  has  come  to  possess 
all  of  the  responsibilities  of  the  man  and  she  is  entitled  to  be  placed 
upon  an  equality  of  rights  with  the  man. 

It  might  be  observed  that  working  in  a  factor}^  in  the  night  hours 
is  not  the  only  situation  of  menace  to  the  working  woman;  but  such 
occupation  is,  arbitrarily,  debarred  her. 

For  these  reasons,  I  advise  that  the  order  appealed  from  should  be 
affirmed. 

CuLLEN,  Ch.  J.,  Edward  T.  Bartlett,  Haight,  Vann,  Willard 
Bartlett,  and  Hiscock,  JJ.,  concur. 

Order  affirmed.^ 

'  Accord:  Ritchie  v.  People,  155  111.  98.  Hut,  Illinois  has  since  apparently 
wholly  receded  from  the  decision  of  the  Ritchie  case.  See  Ritchie  &  Co.  v.  Way- 
man,  244  111.  509  (holding  such  a  law  valid),  and  also  People  v.  Chicago,  'iSO  111. 
558;    People  v.  lOlerdiriK.  254  111.  579. 

Coin{)are  People  v.  Charles  Schweinler  Pre-ss,  214  N.  Y.  395,  infra,  p.  813. 


SECT.  II]  WOMEN  AND   CHILDREN  809 

MULLER  V.  OREGON 

Supreme  Court  of  the  United  States.     1908 

208  U.  S.  412 

Mr.  Justice  Brewer  delivered  the  opinion  of  the  court. 

On  February  19,  1903,  the  legislature  of  the  State  of  Oregon  passed 
an  act  (Session  Laws,  1903,  p.  148),  the  first  section  of  which  is  in 
these  words: 

"Sec.  1.  That  no  female  (shall)  be  employed  in  any  mechanical 
establishment,  or  factory,  or  laundry  in  this  State  more  than  ten 
hours  during  any  one  day.  The  hours  of  work  may  be  so  arranged 
as  to  permit  the  employment  of  females  at  any  time  so  that  they 
shall  not  work  more  than  ten  hours  during  the  twenty-four  hours 
of  any  one  day." 

Sec.  3  made  a  violation  of  the  provisions  of  the  prior  sections  a 
misdemeanor,  subject  to  a  fine  of  not  less  than  $10  nor  more  than 
$25.  On  September  18,  1905,  an  information  was  filed  in  the  Circuit 
Court  of  the  State  for  the  county  of  Multnomah,  charging  that  the 
defendant  "on  the  4th  day  of  September,  a.d.  1905,  in  the  county 
of  Multnomah  and  State  of  Oregon,  then  and  there  being  the  owner 
of  a  laundry,  known  as  the  Grand  Laundry,  in  the  city  of  Portland, 
and  the  employer  of  females  therein,  did  then  and  there  unlawfully 
permit  and  suffer  one  Joe  Haselbock,  he,  the  said  Joe  Haselbock, 
then  and  there  being  an  overseer,  superintendent  and  agent  of  said 
Curt  Muller,  in  the  said  Grand  Laundry,  to  require  a  female,  to  wit, 
one  Mrs.  E.  Gotcher,  to  work  more  than  ten  hours  in  said  laundry 
on  said  4th  day  of  September,  a.  d.  1905,  contrary  to  the  statutes 
in  such  cases  made  and  provided,  and  against  the  peace  and  dignity 
of  the  State  of  Oregon." 

A  trial  resulted  in  a  verdict  against  the  defendant,  who  was  sen- 
tenced to  pay  a  fine  of  .'$10.  The  Supreme  Court  of  the  State  affirmed 
the  conviction.  State  v.  Muller,  48  Oregon,  252,  whereupon  the 
case  was  brought  here  on  writ  of  error. 

The  single  question  is  the  constitutionality  of  the  statute  under 
which  the  defendant  was  convicted  so  far  as  it  affects  the  work  of  a 
female  in  a  laundry.  That  it  does  not  conflict  with  any  provisions 
of  the  state  constitution  is  settled  by  the  decision  of  the  Supreme 
Court  of  the  State.  The  contentions  of  the  defendant,  now  plaintiff 
in  error,  are  thus  stated  in  his  brief:  • 

"  (1)  Because  the  statute  attempts  to  prevent  persons,  sui  juris, 
from  making  their  own  contracts,  and  thus  violates  the  provisions 
of  the  Fourteenth  Amendment.  .  .  . 

"  (2)  Because  the  statute  does  not  apply  equally  to  all  persons 
similarly  situated,  and  is  class  legislatior.. 

"  (3)  The  statute  is  not  a  valid  exercise  of  the  police  power.  The 
kinds  of  work  proscribed  are  not  unlawful,  nor  are  they  declared  to 


810  REGULATORY  LABOR  LEGISLATION         [CHAP.  XVII 

be  immoral  or  dangerous  to  the  public  health;  nor  can  such  a  law 
be  sustained  on  the  ground  that  it  is  designed  to  protect  women  on 
account  of  their  sex.  There  is  no  necessary  or  reasonable  connec- 
tion between  the  limitation  prescribed  bj'  the  act  and  the  public 
health,  safetj'^  or  welfare." 

It  is  the  law  of  Oregon  that  women,  whether  married  or  single, 
have  equal  contractual  and  personal  rights  with  men.  .  .  . 

It  thus  appears  that,  putting  to  one  side  the  elective  franchise, 
in  the  matter  of  personal  and  contractual  rights  they  stand  on  the 
same  plane  as  the  other  sex.  Their  rights  in  these  respects  can  no 
more  be  infringed  than  the  equal  rights  of  their  brothers.  We  held 
in  Lochner  v.  New  York,  198  U.  S.  45,  that  a  law  providing  that  no 
laborer  shall  be  required  or  permitted  to  work  in  a  bakery  more 
than  sixty  hours  in  a  week  or  ten  hours  in  a  day  was  not  as  to  men 
a  legitimate  exercise  of  the  police  power  of  the  State,  but  an  unrea- 
sonable, unnecessary  and  arbitrary  interference  with  the  right  and 
liberty  of  the  individual  to  contract  in  relation  to  his  labor,  and  as 
such  was  in  conflict  with,  and  void  under,  the  Federal  Constitution. 
That  decision  is  invoked  by  plaintiff  in  error  as  decisive  of  the  ques- 
tion before  us.  But  this  assumes  that  the  difference  between  the 
sexes  does  not  justifj'  a  different  rule  respecting  a  restriction  of  the 
hours  of  labor. 

In  patent  cases  counsel  are  apt  to  open  the  argument  with  a  dis- 
cussion of  the  state  of  the  art.  It  may  not  be  amiss,  in  the  present 
case,  before  examining  the  constitutional  question,  to  notice  the 
course  of  legislation  as  well  as  expressions  of  opinion  from  other  than 
judicial  sources.  In  the  brief  filed  by  Mr.  Louis  D.  Brandeis,  for  the 
defendant  in  error,  is  a  very  copious  collection  of  all  these  matters, 
an  epitome  of  which  is  found  in  the  margin.^ 

1  The  following  legislation  of  the  States  impose  restrictions  in  some  form  or 
another  upon  the  hours  of  labor  that  may  be  required  of  women:  Massachusetts: 
chap.  221,  1874,  Rev.  Laws  1902,  chap.106,  sec.  24;  Rhode  Island:  1885,  Acts 
and  Resolves  1902,  chap.  994,  p.  73;  Louisiana:  sec.  4,  Act  43,  p.  55,  Laws  of 
1886,  Rev.  Laws  1904,  vol.  1,  p.  989;  Connecticut:  1887,  Gen.  Stat,  revision 
1902,  sec.  4691;  Maine:  chap.  139,  1887,  Rev.  Stat.  1903,  chap.  40,  sec.  48,  p. 
401;  New  Hampshire:  1887,  Laws  1907,  chap.  94,  p.  95;  Maryland:  chap.  455, 
1888,  Pub.  Gen.  Laws  1903,  art.  100,  sec.  1;   Virginia:   p.  150,' 1889-1890,  Code 

1904,  tit.  51  A,  chap.  178A,  sec.  36576;   Pennsylvania:   No.  26,  p.  30,  1897,  Laws 

1905,  No.  226,  p.  352;  New  York:  Laws  1899,  sec.  1,  chap.  560,  p.  752,  Laws 
1907,  chap.  507,  sec.  77,  subdiv.  3,  p.  1078;  Nebraska:  1899,  Comp.  Stat.  1905, 
sec.  7955,  p.  1986;  Washington:  Stat.  1901,  chap.  68,  .sec.  1,  p.  118;  Colorado: 
Acts  1(^03,  chap.  138,  sec.  3,  p.  310;  New  Jersey:  1892,  Gen.  Stat.  1895.  p.  2350, 
sees.  66,  67;  (Oklahoma:  1890,  Rev.  Stat.  1903,  chap.  25,  art.  58,  sec.  729;  North 
Dakota:  1877,  Rev.  Code  1905,  sec.  9440;  South  Dakota:  1877,  Rev.  Code 
rPenal  Code,  sec.  764),  p.  1185;  Wisconsin:  sec.  1,  chap.  83,  Laws  of  1867,  Code 
1898,  sec.  1728;   South  Carolina:   Acts  1907,  No.  233,  p.  487. 

In  foreign  legislation  Mr.  Brandeis  calls  attention  to  the.se  .statutes:  Great 
Britain:  Factories  Act  of  1844,  chap.  15,  pp.  161,  171;  Factory  and  Workshop 
Act  of  1901,  chap.  22,  pp.  60,  71;  and  see  1  Edw.  VII,  chap.  22.  France,  1848; 
Act  Nov.  2,  1892,  and  March  30,  19(K).     Switzerland,  Canton  of  Glarus,    1848; 


SECT,  ir]  WOMEN  AND   CHILDREN  811 

While  there  have  been  but  few  decisions  bearing  directly  upon 
the  question,  the  following  sustain  the  constitutionality  of  such 
legislation:  Commonwealth  v.  Hamilton  Mfg.  Co.,  120  Mass.  383; 
Wenham  v.  State,  65  Neb.  394,  400,  "406;  State  v.  Buchanan,  29 
Wash.  602;  Commonwealth  v.  Beatty,  15  Pa.  Sup.  Ct.  5,  17;  against 
them  is  the  case  of  Ritchie  v.  People,  155  111.  98. 

The  legislation  and  opinions  referred  to  in  the  margin  may  not 
be,  technically  speaking,  authorities,  and  in  them  is  little  or  no 
discussion  of  the  constitutional  question  presented  to  us  for  deter- 
mination, yet  they  are  significant  of  a  widespread  belief  that  woman's 
physical  structure,  and  the  functions  she  performs  in  consequence 
thereof,  justify  special  legislation  restricting  or  qualifying  the 
conditions  under  which  she  should  be  permitted  to  toil.  Constitu- 
tional questions,  it  is  true,  are  not  settled  by  even  a  consensus  of 
present  public  opinion,  for  it  is  the  peculiar  value  of  a  written  constitu- 
tion that  it  places  in  unchanging  form  limitations  upon  legislative 
action,  and  thus  gives  a  permanence  and  stability  to  popular  govern- 
ment which  otherwise  would  be  lacking.  At  the  same  time,  when  a 
question  of  fact  is  debated  and  debatable,  and  the  extent  to  which 
a  special  constitutional  limitation  goes  is  affected  by  the  truth  in 
respect  to  that  fact,  a  widespread  and  long  continued  belief  concern- 
ing it  is  worthy  of  consideration.  We  take  judicial  cognizance  of 
all  matters  of  general  knowledge. 

It  is  undoubtedly  true,  as  more  than  once  declared  by  this  court, 
that  the  general  right  to  contract  in  relation  to  one's  business  is 
part  of  the  liberty  of  the  individual,  protected  by  the  Fourteenth 
Amendment  to  the  Federal  Constitution ;  yet  it  is  equally  well  settled 
that  this  liberty  is  not  absolute  and  extending  to  all  contracts,  and 
that  a  State  may,  without  conflicting  with  the  provisions  of  the 
Fourteenth  Amendment,  restrict  in  many  respects  the  individual's 
power  of  contract.  Without  stopping  to  discuss  at  length  the  extent 
to  which  a  State  may  act  in  this  respect,  we  refer  to  the  following 
cases  in  which  the  question  has  been  considered:   Allgeyer  v.  Louisi- 

Federal  Law  1877,  art.  2,  sec.  1.  Austria,  185.5;  Acts  1897,  art.  96o,  sees.  1-3. 
Holland,  1889;  art.  5,  sec.  1.  Italy,  June  19,  1902,  art.  7.  Germany,  Laws  1891. 
Then  follow  extracts  from  over  ninety  reports  of  committees,  bureaus  of 
statistics,  commissioners  of  hygiene,  inspectors  of  factories,  both  in  this  country 
and  in  Europe,  to  the  effect  that  long  hours  of  labor  are  dangerous  for  women, 
primarily  because  of  their  special  physical  organization.  The  matter  is  dis- 
cussed in  these  reports  in  different  aspects,  but  all  agree  as  to  the  danger.  It 
would  of  course  take  too  much  space  to  give  these  reports  in  detail.  Following 
them  are  extracts  from  similar  reports  discussing  the  general  benefits  of  short 
hours  from  an  economic  aspect  of  the  question.  In  many  of  these  reports  in- 
dividual instances  are  given  tending  to  support  the  general  conclusion.  Perhaps 
the  general  scope  and  character  of  all  these  reports  may  be  summed  up  in  what 
an  inspector  for  Hanover  says:  "The  reasons  for  the  reduction  of  the  working 
day  to  ten  hours  —  (a)  the  physical  organization  of  women,  (b)  her  maternal 
functions,  (c)  the  rearing  and  education  of  the  children,  (d)  the  maintenance  of 
the  home  —  are  all  so  important  and  so  far  reaching  that  the  need  for  such  reduc- 
tion need  hardly  be  discussed." 


812  REGULATORY  LABOR  LEGISLATION         [CHAP.  XVII 

ana,  165  U.  S.  578;    Holden  v.  Hardv,  169  U.  S.  366;    Lochner  v. 
New  York,  198  U.  S.  45. 

That  woman's  physical  structure  and  the  performance  of  maternal 
functions  place  her  at  a  disadvantage  in  the  struggle  for  subsistence 
is  obvious.  This  is  especially  true  when  the  burdens  of  motherhood 
are  upon  her.  Even  when  they  are  not,  by  abundant  testimony  of 
the  medical  fraternity  continuance  for  a  long  time  on  her  feet  at 
work,  repeating  this  from  day  to  day,  tends  to  injurious  effects  upon 
the  body,  and  as  healthy  mothers  are  essential  to  vigorous  offspring, 
the  physical  well-being  of  woman  becomes  an  object  of  public  in- 
terest and  care  in  order  to  preserve  the  strength  and  vigor  of  the 
race. 

Still  again,  history  discloses  the  fact  that  woman  has  always  been 
dependent  upon  man.  He  established  his  control  at  the  outset  by 
superior  physical  strength,  and  this  control  in  various  forms,  with 
diminishing  intensity,  has  continued  to  the  present.  As  minors, 
though  not  to  the  same  extent,  she  has  been  looked  upon  in  the 
courts  as  needing  especial  care  that  her  rights  may  be  preserved. 
Education  was  long  denied  her,  and  while  now  the  doors  of  the 
school  room  are  opened  and  her  opportunities  for  acquiring  knowl- 
edge are  great,  yet  even  with  that  and  the  consequent  increase  of 
capacity  for  business  affairs  it  is  still  true  that  in  the  struggle  for 
subsistence  she  is  not  an  equal  competitor  with  her  brother.  Though 
limitations  upon  personal  and  contractual  rights  may  be  removed 
by  legislation,  there  is  that  in  her  disposition  and  habits  of  life  which 
will  operat-e  against  a  full  assertion  of  those  rights.  She  will  still  be 
where  some  legislation  to  protect  her  seems  necessary  to  secure  a 
real  equality  of  right.  Doubtless  there  are  individual  exceptions, 
and  there  are  many  respects  in  which  she  has  an  advantage  over 
him;  but  looking  at  it  from  the  viewpoint  of  the  effort  to  maintain 
an  independent  position  in  life,  she  is  not  upon  an  equality.  Differen- 
tiated by  these  matters  from  the  other  sex,  she  is  properly  placed 
in  a  class  by  herself,  and  legislation  designed  for  her  protection  may 
be  sustained,  even  when  like  legislation  is  not  necessary  for  men  and 
could  not  be  sustained.  It  is  impossible  to  close  one's  eyes  to  the 
fact  that  she  still  looks  to  her  brother  and  depends  upon  him.  Even 
though  all  restrictions  on  political,  personal  and  contractual  rights 
were  taken  away,  and  she  stood,  so  far  as  statutes  are  concerned, 
upon  an  absolutely  eciual  plane  with  him,  it  would  still  he  true  that 
she  is  so  constituted  that  she  will  rest  upon  and  look  to  him  for 
protection;  that  her  physical  structure  and  a  proper  discharge  of 
licr  mat<'rnal  functions  —  having  in  view  not  merely  her  own  health, 
but  the  well-being  of  the  race  —  justify  legislation  to  protect  her 
from  the  greed  as  well  as  the  passion  of  man.  The  limitations  which 
this  statute  places  ui)on  her  contractual  powers,  upon  her  right  to 
agree  with  her  employer  as  to  the  time  she  siiall  labor,  are  not  im- 
posed solely  for  her  benefit,  but  also  largely  for  the  benefit  of  all. 


SECT.  II]  WOMEN   AND   CHILDREN  813 

Many  words  cannot  make  this  plainer.  The  two  sexes  differ  in  struc- 
ture of  body,  in  the  functions  to  be  performed  by  each,  in  the  amount 
of  physical  strength,  in  the  capacity  for  long-continued  labor,  partic- 
ularly when  done  standing,  the  influence  of  vigorous  health  upon  the 
future  well-being  of  the  race,  the  self-reliance  which  enables  one  to 
assert  full  rights,  and  in  the  capacity  to  maintain  the  struggle  for 
subsistence.  This  difference  justifies  a  difference  in  legislation  and 
upholds  that  which  is  designed  to  compensate  for  some  of  the  bur- 
dens which  rest  upon  her. 

We  have  not  referred  in  this  discussion  to  the  denial  of  the  elective 
franchise  in  the  State  of  Oregon,  for  while  it  may  disclose  a  lack  of 
political  equality  in  all  things  with  her  brother,  that  is  not  of  itself 
decisive.  The  reason  runs  deeper,  and  rests  in  the  inherent  difference 
between  the  two  sexes,  and  in  the  different  functions  in  life  which 
they  perform. 

For  these  reasons,  and  without  questioning  in  any  respect  the 
decision  in  Lochner  v.  New  York,  we  are  of  the  opinion  that  it  can- 
not be  adjudged  that  the  act  in  question  is  in  conflict  with  the  Fed- 
eral Constitution,  so  far  as  it  respects  the  work  of  a  female  in  a 
laundry,  and  the  judgment  of  the  Supreme  Court  of  Oregon  is 

Affirmed.^ 

PEOPLE  V.  CHARLES  SCHWEINLER  PRESS 

Court  of  Appeals  of  New  York.     1915 
214  N.  Y.  395 

Appeal  from  an  order  of  the  Appellate  Division  of  the  Supreme 
Court  in  the  first  judicial  department,  entered  July  10,  1914,  which 
reversed  an  order  of  the  Court  of  Special  Sessions  of  the  city  of  New 
York,  granting  a  motion  in  arrest  of  its  judgment  convicting  the 
defendant  of  a  violation  of  sec.  93-b  of  the  Labor  Law,  denied  said 
motion  and  remanded  the  case  to  the  Court  of  Special  Sessions, 
there  to  be  proceeded  with  according  to  law. 

The  statute  for  violation  of  which  the  appellant  was  convicted 
reads  as  follows: 

"  Sec.  93-b.  Period  of  rest  at  night  for  women.  In  order  to  protect 
the  health  and  morals  of  females  employed  in  factories  by  providing 
an  adequate  period  of  rest  at  night,  no  woman  shall  be  employed  or 
permitted  to  work  in  any  factory  in  this  state  before  six  o'clock  in 
the  morning  or  after  ten  o'clock  in  the  evening  of  any  day." 

1  Accord:  Riley  v.  Massachusetts,  232  U.  S.  671  (Massachusetts  statute  for- 
bidding the  employment  of  women  or  children  for  more  than  ten  hours  in  any 
one  day  or  more  than  fifty-six  hours  a  week) ;  Hawley  v.  Walker,  232  U.  S.  718 
(Ohio  statute  forbidding  the  employment  of  women  more  than  ten  hours  in  any 
one  day  or  more  than  fifty-four  hours  in  any  one  week) ;  Miller  v.  Wilson,  236 
U.  S.  373  (CaHfornia  statute  forbidding  the  emploj'ment  of  women  more  than 
eight  hours  in  any  one  day  or  more  than  forty-eight  hours  in  one  week);  Bosley  v. 
McLaughlin,  236  U.  S.  385. 


814  REGULATORY  LABOR  LEGISLATION         [CHAP.  XVII 

HiscocK,  J.  This  appeal  presents  for  consideration  a  question 
of  the  constitutionahty  of  certain  industrial  legislation,  so  called. 

It  is  undisputed  that  the  appellant  caused  or  permitted  a  married 
woman  to  work  in  a  factory  operated  by  it  between  the  hours  of 
ten  o'clock  in  the  evening  and  six  o'clock  in  the  morning,  and  thereby 
violated  the  provisions  of  the  act  above  quoted,  and  became  subject 
to  the  punishment  duly  prescribed  for  such  violation.  It  challenges, 
however,  the  legality  of  its  conviction  for  the  reason,  as  claimed, 
that  said  act  unduly  and  unjustifiably  interferes  with  the  right  of 
an  adult  woman  to  contract  for  her  own  labor,  and  thus  violates 
various  provisions  of  the  Constitution  both  of  the  State  and  of  the 
United  States,  which  in  effect  provide  that  no  one  shall  be  deprived 
of  life,  liberty  or  property  except  by  due  process  of  law,  and  that  no 
unjust  discrimination  shall  be  made  between  different  classes  of 
citizens  by  denial  of  the  equal  protection  of  law. 

The  answer  to  this  challenge  is  that  night  work  in  factories  as 
contrasted  with  day  labor  substantially  affects  and  impairs  the 
physical  condition  of  women  and  prevents  them  from  discharging 
in  a  healthful  and  satisfactory  manner  the  peculiar  functions  which 
have  been  imposed  upon  them  by  nature,  and  that,  therefore,  it  was 
within  the  power  of  the  legislature  to  enact  the  statute  as  a  police 
regulation  tending  to  protect  the  well-being  of  a  large  class  of  citizens 
and  promote  the  public  welfare.  We  are,  therefore,  presented  with 
the  issue  whether  it  can  be  said  that  night  work  by  women  in  fac- 
tories is  so  generally  and  substantially  injurious  to  their  health  that 
the  legislature  was  justified  by  public  considerations  in  preventing 
the  evil  by  forbidding  the  cause.  In  the  determination  of  this  ques- 
tion it  will  be  well  first  to  summarize  some  of  the  facts  and  reasons 
which  induced  the  legislation,  and,  second,  to  test  the  sufficiency  of 
these  as  a  basis  for  the  statute  by  certain  principles  of  law  applicable 
to  such  a  case. 

There  are  certain  fundamental  facts  involved  in  the  decision  of 
the  (question  which  are  beyond  any  dispute.  The  statute  forbids 
night  work  simply  in  factories.  We  know  as  a  matter  of  connnon 
observation  that  such  labor  is  generally  performed  in-doors  and  that 
under  average  conditions  and  surroundings  existing  in  factories, 
even  when  performed  in  the  daytime,  it  is  ordinarily  arduous  and 
exacting. 

Impairment  caused  by  exhaustion  or  even  ordinary  weariness 
must  be  repaired  by  normal  and  refreshing  sleep  and  rest  if  health 
and  efficiency  are  to  be  preserved.  The  natural  and  connnon  order 
of  work  and  rest  is  that  the  former  sliall  be  for  tlie  most  part  per- 
formed during  the  hours  of  day  and  the  latter  enjoyed  during  the 
night.  Habitual  and  continuous  work  by  night  is  at  variance  with 
this  order. 

Protection  of  the  hcultli  of  women  is  a  subject  of  special  concern 
to  the  state.     However  confident  a  great  number  of  people  may  be 


SECT,  n]  WOMEN   AND   CHILDREN  815 

that  in  many  spheres  of  activity,  including  that  of  the  administra- 
tion of  government,  woman  is  the  full  equal  of  man,  no  one  doubts 
that  as  regards  bodily  strength  and  endurance  she  is  inferior  and 
that  her  health  in  the  field  of  physical  labor  must  be  specially  guarded 
by  the  state  if  it  is  to  be  preserved  and  if  she  is  to  continue  successfully 
and  healthfully  to  discharge  the  duties  which  nature  has  imposed 
upon  her.  This  proposition  is  fully  recognized  and  stated  in  MuUer 
V.  Oregon  (208  U.  S.  412,  421).  .  .  \ 

Moved  in  part  it  may  be  by  such  general  and  underlying  con- 
siderations as  these,  under  and  in  accordance  with  two  statutes 
adopted  by  our  legislature  in  1911  and  1912  (Laws  of  1911,  chapter 
501;  Laws  of  1912,  chapter  21),  there  was  appointed  in  the  latter 
year  a  Factory  Investigating  Commission.  This  commission  con- 
sidered this  subject  of  night  work  by  women  in  factories  and  in  1913 
made  a  report  to  the  legislature,  recommending  that  there  be  passed 
the  law  now  before  us  prohibiting  it.  It  reported  that  such  prohibition 
was  essential  to  protect  and  preserve  the  health  and  to  some  extent 
the  morals  of  women.  It  stated:  "The  chief  danger  of  health  from 
night  work  is  .  .  .  due  to  the  inevitable  lack  of  sleep  and  sunlight. 
Recuperation  from  fatigue  takes  place  fully  only  in  sleep,  and  best, 
in  sleep  at  night.  Hence,  night  work  is,  in  a  word,  against  nature. 
When  exhausting  factory  work  fills  the  night,  and  household  work 
most  of  the  day,  health  must  inevitably  be  sacrificed.  This  injury 
to  health  is  all  the  greater,  because  sleep  lost  at  night  by  working 
women  is  never  fully  made  up  by  day.  For,  in  the  first  place,  sleep 
in  the  daytime  is  not  equal  in  recuperative  power  to  sleep  at  night.  .  .  . 
Moreover,  quiet  and  privacy  for  sleep  by  day  is  almost  impossible 
to  secure.  Upon  returning  home  in  the  middle  of  the  night  or  at 
dawn  the  workers  can  snatch  at  most  only  a  few  hours  rest." 

While  it  is  impossible  to  review  at  length  this  report  and  recom- 
mendation and  the  foundations  therefor,  it  may  briefly  and  generally 
be  stated  that  it  was  based  upon  and  supported  by  quite  an  exten- 
sive investigation  by  the  commission  of  actual  factory  conditions 
in  this  state  where  women  performed  night  work,  by  many  opinions 
of  medical  and  other  experts,  and  examination  of  other  industrial 
investigations  and  legislation  adopted  in  other  jurisdictions  in  obe- 
dience we  must  assume  to  public  opinion,  forbidding  such  night  work. 
It  was  also  supported,  whether  expressly  so  stated  or  not,  by  the  gen- 
eral considerations  first  above  set  forth.  Amongst  other  things  in 
the  report  to  which  special  reference  may  be  made,  it  appeared  that 
in  1906  there  assembled  in  Switzerland  representatives  of  fourteen 
European  governments  who  signed  an  international  convention  for 
the  prohibition  of  industrial  work  at  night  by  women,  and  that  prior 
to  1912  all  of  the  powers  represented  except  one  had  ratified  the  con- 
vention, and  that  in  many  cases  such  legislation  provided  for  a 
longer  period  of  rest  at  night  than  that  recommended  by  the  inter- 
national agreement.    It  also  appears  now  by  the  briefs  submitted  to 


816  REGULATORY  LABOR  LEGISLATION         [CHAP.  XVII 

US,  whether  that  was  stated  in  the  report  or  not,  that  nine  of  the 
United  States  had  passed  legislation  prohibiting  such  night  work 
by  women. 

Thus  at  the  time  when  this  statute  was  adopted  there  was  before 
the  legislature  the  report  of  a  commission  created  by  it  to  consider 
and  report  on  this  subject,  based  on  natural  laws  and  on  actual  in- 
vestigation, a  large  volume  of  expert  and  medical  opinion  and  a  large 
number  of  statutes  adopted  in  various  jurisdictions,  all  of  which 
tended  to  show  a  careful  and  long-continued  study  and  examination 
of  the  subject  of  night  work  by  women,  and  as  a  result  of  such  study 
and  examination  a  widespread  belief  that  such  work  was  so  injurious 
to  their  health  that  it  ought  to  be  prohibited  both  for  their  own 
sakes  and  for  the  sake  of  the  offspring  whom  they  might  bear. 

We  then  come  to  the  querj^  whether  such  facts,  evidence  and 
information  furnished  a  sufficient  reason  for  action  by  the  legislature 
and  justified  the  statute  which  was  adopted,  and  I  think  the  answer 
must  be  in  the  affirmative. 

In  the  decision  by  the  legislature  whether  it  should  adopt  such 
legislation,  and  in  the  determination  by  us  whether  the  legislature 
was  justified  in  adopting  it,  that  body  was  and  we  are  entitled  to 
take  into  account  the  report  made  by  the  commission,  such  facts 
tending  to  support  it  as  were  matters  of  common  knowledge,  and 
the  widespread  and  long-continued  belief  evidenced  by  statutes 
and  in  other  manners  that  night  work  by  women  in  such  a  place 
as  a  factory  is  so  injurious  that  grave  dangers  therefrom  are  to  be 
apprehended.  .  .  . 

The  knowledge  and  information  before  the  legislature  which  it 
was  thus  entitled  to  consider  presented  to  it  a  subject  of  general 
interest  and  public  concern  which  justified  consideration  and  legisla- 
tion. It  warranted  the  belief  that  night  work  b}''  women  in  factories 
is  generally,  substantially  and  especially  detrimental  to  their  health, 
and  surcl}^  it  is  a  matter  of  vital  importance  to  the  state  that  the 
health  of  thousands  of  women  working  in  factories  should  be  pro- 
tected and  safeguarded  from  any  drain  which  can  reasonably  be 
avoided.  This  not  only  for  their  own  sakes  but,  as  is  and  ought  to 
be  constantly  and  legitimately  emphasized,  for  the  sake  of  the  chil- 
dren whom  a  great  majorit}'  of  them  will  be  called  on  to  bear  and 
who  will  almost  inevitably  display  in  their  deficiencies  the  unfor- 
tunate inheritance  conferred  upon  them  by  physically  broken  down 
mothers. 

The  legislature  was  justified  in  preventing  any  such  evils  as  those 
which  were  outlined,  both  real  and  fairly  to  be  anticipated,  by  any 
legislation  which  reasonably  tended  to  prevent  them,  and  it  had  a 
wide  discretion  in  formulating  the  means  which  it  would  adopt  to 
this  end.  (People  ex  rcl.  Ncchamcus  /'.  Warden,  etc.,  144  N.  Y.  529, 
535;  People  v.  Ewer,  141  N.  Y.  129.) 

It  was  a  sufficient  basis  in  that  respect  for  action  if  only  there 


SECT.  II]  WOMEN  AND   CHILDREN  817 

were  reasonable  grounds  for  belief  that  such  labor  was  thus  injurious, 
even  though  there  was  an  "earnest  conflict  of  serious  opinion"  on 
the  subject.  (Holden  v.  Hardy,  169  U.  S.  366,  395;  Erie  Railroad 
Co.  V.  New  York,  233  U.  S.  671,  699.) 

The  only  question  then  left  is  the  one  whether  the  legislature  was 
justified  in  going  so  far  as  to  prohibit  night  labor  in  factories  between 
the  hours  named  by  it  as  a  means  of  promoting  the  public  welfare 
by  averting  the  actual  or  apprehended  misfortune  of  broken  health 
of  working  women.  There  are  well-established  general  rules  by  which 
to  test  this  question. 

In  considering  legislation  adopted  for  such  a  purpose  we  must  start 
out  with  the  presumption  that  it  is  constitutional  and  valid.  (People 
ex  rel.  Kemmler  v.  Durston,  119  N.  Y,  569,  577.)  If  the  statute 
upon  its  face  appears  to  be  reasonable  and  just  and  appropriate,  and 
we  can  fairly  believe  that  its  natural  consequences  will  be  in  the 
direction  of  betterment  of  public  health  and  welfare,  and,  therefore, 
that  it  is  one  which  the  state  for  its  protection  and  advantage  may 
enact  and  enforce,  it  will  be  the  duty  of  the  courts  to  pronounce  it 
constitutional  even  though  they  should  doubt  its  wisdom.  (People 
V.  Klinck  Packing  Co.,  214  N.  Y.  121;  Holden  v.  Hardy,  169  U.  S. 
366,  395.)  Or,  to  state  the  rule  in  converse  form,  before  we  can 
pronounce  such  a  statute  as  that  now  before  us  unconstitutional  we 
must  be  able  to  see  either  that  there  is  no  real,  substantial  evil  of 
public  interest  to  be  guarded  against  or  that  there  is  no  reasonable 
relation  between  the  evil  and  the  purported  cure  or  prevention  of- 
fered by  the  statute.  (Booth  v.  Illinois,  184  U.  S.  425;  Chicago,  B. 
&  Q.  R.  R.  Co.  V.  McGuire,  219  U.  S.  549.) 

It  is  not  a  basis  for  a  constitutional  objection  to  a  statute  like  this 
generally  prohibiting  the  labor  of  women  between  certain  hours  that 
in  exceptional  cases  it  may  prevent  employment  of  some  women  for 
a  short  time  between  those  hours  under  such  conditions  as  would 
be  productive  of  no  substantial  harm.  A  legislature  must  legislate 
in  general  terms,  and  its  mandates  are  not  constitutionally  vulner- 
able because  having  power  to  act  concerning  a  certain  subject  and 
to  legislate  in  terms  reasonably  calculated  to  accomplish  the  general 
purpose  within  the  scope  of  its  authority,  it  covers  and  prohibits 
some  isolated  transaction  which  by  itself  would  be  harmless  and 
unobjectionable.  (Purity  Extract  &  Tonic  Co.  v.  Lynch,  226  U.  S. 
192;  People  ex  rel.  UiWv.  Hesterberg,  184  N.  Y.  126,  131;  Otis  v. 
Parker,  187  U.  S.  606.) 

Neither  is  it  an  effective  objection  to  a  statute  if  some  of  those 
who  will  be  protected  by  its  provisions  oppose  such  protection,  for 
the  state  has  such  an  interest  in  the  welfare  of  its  citizens  that  it  may 
if  necessary  protect  them  against  even  their  own  indifference,  error 
or  recklessness.  (Holden  v.  Hardy,  169  U.  S.  366;  Hennington  v. 
Georgia,  163  U.  S.  299.)  Nor  if  some  cases  which  might  have  been 
included  are  omitted,  for  police  legislation  may  rest  on  narrow  dis- 


818  REGULATORY  LABOR  LEGISLATION         [CHAP.  XVII 

tinctions.     (Keokee  Cons.  Coke  Co.  v.  Taylor,  234  U.  S.  224;   Ger- 
man Alliance  Ins.  Co.  v.  Kansas,  233  U.  S.  389.) 

Tested  and  fortified  by  these  rules,  we  cannot  and  ought  not  to 
say  that  the  legislature  did  not  act  within  the  wide  powers  of  dis- 
cretion and  judgment  possessed  by  it  in  adopting  the  prohibition 
which  it  did  as  a  means  of  preventing  the  evils  with  which  it  was 
justified  in  believing  the  state  to  be  threatened  as  the  result  of  such 
night  work  by  women.  .  .   . 

Therefore,  we  conclude  the  statute  is  constitutional  as  a  police 
regulation  in  the  interest  of  public  health  and  the  general  welfare 
of  the  people  of  the  state. 

In  reaching  the  conclusion  above  set  forth  we  have  not  overlooked 
or  failed  to  consider  the  forcibly  expressed  argument  of  the  appellant 
that  we  have  been  passing  through  days  when  many  people  were 
prodigal  in  their  generous  willingness  to  devise  statutory  cures  for 
other  people  who  neither  demanded,  desired  or  needed  them,  and 
that  this  statute  in  its  universal  application  to  all  factories  will  in- 
flict unnecessary  hardships  on  a  great  many  women  who  neither  ask 
nor  require  its  provisions  by  depriving  them  of  an  opportunity  to 
earn  a  livelihood  by  perfectly  healthful  labor  although  performed 
during  some  of  the  hours  of  the  night.  There  may  or  may  not  be 
force  in  some  of  these  arguments.  They  are  of  the  kind  which  in- 
volve questions  of  discretion,  judgment  and  public  policy  and  must 
be  addressed  to  the  legislature.  .  .  . 

Lastly,  it  is  urged  that  whatever  might  be  our  original  views  con- 
cerning this  statute,  our  decision  in  People  v.  Williams  (189  N.  Y. 
131)  is  an  adjudication  which  ought  to  bind  us  to  the  conclusion 
that  it  is  unconstitutional.  .  .  . 

The  statute  under  consideration  in  the  Williams  case,  like  the 
present  one,  prohibited  night  work  by  women  in  factories,  and  while 
its  provisions  were  somewhat  more  drastic  than  those  of  the  present 
one,  it  may  be  conceded  that  these  differences  were  of  details  and 
would  not  serve  to  distinguish  that  statute  from  the  present  one  in 
respect  of  its  constitutionality.  .  .  . 

While  theoretically  we  may  have  been  able  to  take  judicial  notice 
of  some  of  the  facts  and  of  some  of  the  legislation  now  called  to  our 
attention  as  sustaining  the  belief  and  opinion  that  night  work  in 
factories  is  widely  and  substantially  injurious  to  the  health  of  women, 
actually  very  few  of  these  facts  were  called  to  our  attention,  and  the 
argument  to  uphold  the  law  on  that  ground  was  brief  and  incon- 
sequential. 

Especially  and  necessarily  was  there  lacking  evidence  of  the  ex- 
tent to  which  during  the  intervening  years  the  opinion  and  belief 
have  spread  and  strengthened  that  such  night  work  is  injurious  to 
women ;  of  the  laws,  as  indicating  such  belief,  since  adopted  by  several 
of  our  own  states  and  by  large  European  countries,  and  the  report 
made  to  the  legislature  by  its  own  agency,  the  factory  investigating 


SECT.  Ill]  DANGEROUS  OCCUPATIONS  819 

commission,  based  on  investigation  of  actual  conditions  and  study  of 
scientific  and  medical  opinion  that  night  work  by  women  in  factories 
is  generally  injurious  and  ought  to  be  prohibited. 

The  failure  adequately  to  fortify  and  press  upon  our  attention  the 
constitutionality  of  the  former  law  as  a  health  and  police  measure  and 
to  sustain  its  constitutionality  by  reference  to  proper  facts  and  cir- 
cumstances is  sufficiently  evidenced  by  what  was  said  by  Judge  Gray: 
"I  find  nothing  in  the  language  of  the  section  which  suggests  the  pur- 
pose of  promoting  health,  except  as  it  might  be  inferred  that  for  a 
woman  to  work  during  the  forbidden  hours  of  night  would  be  un- 
healthful."  ... 

I,  therefore,  think  that  the  order  appealed  from  should  be  affirmed. 

Chase,  Hogan,  Miller,  and  Cardozo,  JJ.,  concur;  Willard 
Bartlett,  Ch.  J.,  concurs  in  the  result  and  in  that  part  of  the  opinion 
which  discusses  the  Williams  case;   Collin,  J.,  not  voting. 

Order  affirmed. 


Section  3.   Laws  Regulating  Employment  in  Dangerous  or 
Unhealthful  Occupations 

HOLDEN  V.  HARDY 

Supreme  Court  of  the  United  States.     1898 

169  U.  S.  366 

These  were  writs  of  error  to  review  two  judgments  of  the  Supreme 
Court  of  the  State  of  Utah,  denying  applications  of  the  plaintiff  in 
error,  Holden,  for  his  discharge  upon  two  writs  of  habeas  corpus, 
and  remanding  him  to  the  custody  of  the  sheriff  of  Salt  Lake  County. 

The  facts  in  case  No.  261  were  substantially  as  follows:  On  June 
20,  1896,  complaint  was  made  to  a  justice  of  the  peace  of  Salt  Lake 
City  that  the  petitioner  Holden  had  unlawfully  employed  "one  John 
Anderson  to  work  and  labor  as  a  miner  in  the  underground  work- 
ings of  the  Old  Jordan  mine  in  Bingham  canon,  in  the  county  afore- 
said, for  the  period  of  ten  hours  each  day."  .  .  . 

The  court,  having  heard  the  evidence,  found  the  defendant  guilty 
as  charged  in  the  complaint,  imposed  a  fine  of  fifty  dollars  and  costs, 
and  ordered  that  the  defendant  be  imprisoned  in  the  county  jail  for 
a  term  of  fifty-seven  days,  or  until  such  fine  and  costs  be  paid. 

Thereupon  petitioner  sued  out  a  writ  of  habeas  corpus  from  the 
Supreme  Court  of  the  State,  annexing  a  copy  of  the  proceedings 
before  the  justice  of  the  peace,  and  praying  his  discharge.  The 
Supreme  Court  denied  his  application,  and  remanded  him  to  the 
custody  of  the  sheriff,  whereupon  he  sued  out  this  writ  of  error, 
assigning  the  unconstitutionality  of  the  law. 

In  the  second  case  the  complaint  alleged  the  unlawful  employ- 
ment by  Holden  of  one  William  Hooley  to  work  and  labor  in  a  certain 


820  REGULATORY  LABOR  LEGISLATION         [CHAP.  XVII 

concentrating  mill,  the  same  being  an  institution  for  the  reduction 
of  ores,  for  the  period  of  twelve  hours  per  day.  The  proceedings  in 
this  case  were  precisely  the  same  as  in  the  prior  case,  and  it  was  ad- 
mitted that  there  was  no  distinction  in  principle  between  the  two 
cases. 

Mr.  Justice  Brown,  after  making  the  above  statement,  de- 
livered the  opinion  of  the  court. 

This  case  involves  the  constitutionality  of  an  act  of  the  legislature 
of  Utah,  of  March  30,  1896,  c.  72,  entitled  "An  act  regulating  the 
hours  of  emplo3mient  in  underground  mines  and  in  smelters  and  ore 
reduction  works."  Session  Laws  of  Utah,  1896,  p.  219.  The  follow- 
ing are  the  material  provisions: 

"Sec.  1.  The  period  of  employment  of  workingmen  in  all  under- 
ground mines  or  workings  shall  be  eight  hours  per  day,  except  in 
cases  of  emergency  where  life  or  property  is  in  imminent  danger. 

"Sec.  2.  The  period  of  employment  of  workingmen  in  smelters 
and  all  other  institutions  for  the  reduction  or  refining  of  ores  or 
metals  shall  be  eight  hours  per  day,  except  in  cases  of  emergency 
where  life  or  property  is  in  imminent  danger. 

"Sec.  3.  Any  person,  body  corporate,  agent,  manager  or  em- 
ployer, who  shall  violate  any  of  the  provisions  of  sections  one  and  two 
of  this  act,  shall  be  guilty  of  a  misdemeanor."  .  .  . 

The  validity  of  the  statute  in  question  is  challenged  upon  the 
ground  of  an  alleged  violation  of  the  Fourteenth  Amendment  to  the 
Constitution  of  the  United  States,  in  that  it  abridges  the  privileges 
or  immunities  of  citizens  of  the  United  States;  deprives  both  the 
employer  and  the  laborer  of  his  property  without  due  process  of 
law,  and  denies  to  them  the  equal  protection  of  the  laws.  As  the 
three  questions  of  abridging  their  immunities,  depriving  them  of 
their  property,  and  denying  them  the  protection  of  the  laws,  are  so 
connected  that  the  authorities  upon  each  are,  to  a  greater  or  less 
extent,  pertinent  to  the  others,  they  may  properly  be  considered 
together.  ... 

An  examination  of  .  .  .  cases  undcM-  the  Fourteenth  Amendment  will 
demonstrate  that,  in  passing  upon  the  validity  of  state  legislation 
under  that  amendment,  this  court  has  not  failed  to  recognize  the 
fact  that  the  law  is,  to  a  certain  extent,  a  progressive  science;  that 
in  some  of  the  States  methods  of  proceduie,  which  at  the  time  the 
Constitution  was  adopted  were  deemed  essential  to  the  protection  and 
safety  of  the  people,  or  to  the  liberty  of  the  citizen,  have  been  found 
to  be  no  longer  necessary;  that  restrictions  which  had  formerly  been 
laid  upon  the  conduct  of  individuals,  or  of  classes  of  individuals, 
had  proved  detrimental  to  tJH'ir  interests;  while,  upon  the  other 
hand,  certain  other  classes  of  persons,  particularly  those  engaged  in 
dangerous  or  unhealthful  employments,  iiave  lx>en  found  to  be  in 
need  of  additional  protection.   .   .   . 

While  the  canhnul  principles  of  justice^  arc  ininuitable,  the  methods 


SECT.  Ill]  DANGEROUS  OCCUPATIONS  821 

by  which  justice  is  administered  are  subject  to  constant  fluctuation, 
and  .  .  .  the  Constitution  of  the  United  States,  which  is  necessarily 
and  to  a  large  extent  inflexible  and  exceedingly  difficult  of  amendment, 
should  not  be  so  construed  as  to  deprive  the  States  of  the  power  to 
so  amend  their  laws  as  to  make  them  conform  to  the  wishes  of  the 
citizens  as  they  may  deem  best  for  the  public  welfare  without  bring- 
ing them  into  conflict  with  the  supreme  law  of  the  land. 

Of  course,  it  is  impossible  to  forecast  the  character  or  extent  of  these 
changes,  but  in  view^  of  the  fact  that  from  the  day  Magna  Charta 
was  signed  to  the  present  moment,  amendments  to  the  structure  of 
the  law  have  been  made  with  increasing  frequency,  it  is  impossible 
to  suppose  that  they  will  not  continue,  and  the  law  be  forced  to  adapt 
itself  to  new  conditions  of  society,  and,  particularly,  to  the  new 
relations  between  employers  and  employes,  as  they  arise.  .  .  . 

This  court  has  never  attempted  to  define  with  precision  the  words 
"due  process  of  law,"  nor  is  it  necessary  to  do  so  in  this  case.  It  is 
sufficient  to  say  that  there  are  certain  immutable  principles  of  jus- 
tice which  inhere  in  the  very  idea  of  free  government  which  no  mem- 
ber of  the  Union  may  disregard,  as  that  no  man  shall  be  condemned 
in  his  person  or  property  without  due  notice  and  an  opportunity  of 
being  heard  in  his  defence.  .  .  . 

As  the  possession  of  property,  of  which  a  person  cannot  be  de- 
prived, doubtless  implies  that  such  property  may  be  acquired,  it  is 
safe  to  say  that  a  state  law  which  undertakes  to  deprive  any  class  of 
persons  of  the  general  power  to  acquire  property  would  also  be  ob- 
noxious to  the  same  provision.  Indeed,  we  may  go  a  step  further, 
and  say  that,  as  property  can  only  be  legally  acquired  as  between 
living  persons  by  contract,  a  general  prohibition  against  entering 
into  contracts  with  respect  to  property,  or  having  as  their  object 
the  acquisition  of  property,  would  be  equally  invalid.  .  .  . 

This  right  of  contract,  however,  is  itself  subject  to  certain  limita- 
tions which  the  State  may  lawfully  impose  in  the  exercise  of  its 
police  powers.  While  this  power  is  inherent  in  all  governments,  it 
has  doubtless  been  greatly  expanded  in  its  application  during  the 
past  century,  owing  to  an  enormous  increase  in  the  number  of  occu- 
pations which  are  dangerous,  or  so  far  detrimental  to  the  health  of 
employes  as  to  demand  special  precautions  for  their  well-being  and 
protection,  or  the  safety  of  adjacent  propert3\  While  this  court 
has  held,  notably  in  the  cases  Davidson  v.  New  Orleans,  96  U.  S.  97, 
and  Yick  Wo  v.  Hopkins,  118  U.  S.  356,  that  the  police  power  cannot 
be  put  forward  as  an  excuse  for  oppressive  and  unjust  legislation,  it 
may  be  lawfully  resorted  to  for  the  purpose  of  preserving  the  public 
health,  safety  or  morals,  or  the  abatement  of  public  nuisances,  and 
a  large  discretion  "is  necessarily  vested  in  the  legislature  to  deter- 
mine not  only  what  the  interests  of  the  public  require,  but  what 
measures  are  necessary  for  the  protection  of  such  interests."  Lawton 
V.  Steele,  152  U.  S.  133,  136.  .  .  . 


822  REGULATORY  LABOR  LEGISLATION         [CHAP.  XVII 

This  power  legitimately  exercised  can  neither  be  limited  by  con- 
tract nor  bartered  away  by  legislation. 

While  this  power  is  necessarily  inherent  in  every  form  of  govern- 
ment, it  was,  prior  to  the  adoption  of  the  Constitution,  but  sparingly 
used  in  this  country.  As  we  were  then  almost  purely  an  agricultural 
people,  the  occasion  for  any  special  protection  of  a  particular  class 
did  not  exist.  Certain  profitable  employments,  such  as  lotteries  and 
the  sale  of  intoxicating  liquors,  which  were  then  considered  to  be 
legitimate,  have  since  fallen  under  the  ban  of  public  opinion,  and 
are  now  either  altogether  prohibited,  or  made  subject  to  stringent 
police  regulations.  The  power  to  do  this  has  been  repeatedly  affirmed 
by  this  court.  Stone  v.  Mississippi,  101  U.  S.  814;  Douglas  v.  Ken- 
tucky, 168  U.  S.  488;  Giozza  v.  Tiernan,  148  U.  S.  657;  Kidd  v. 
Pearson,  128  U.  S.  1;  Crowley  v.  Christensen,  137  U.  S.  86. 

While  the  business  of  mining  coal  and  manufacturing  iron  began 
in  Pennsylvania  as  early  as  1716,  and  in  Virginia,  North  Carohna 
and  Massachusetts  even  earlier  than  this,  both  mining  and  manu- 
facturing were  carried  on  in  such  a  limited  way  and  by  such  primitive 
methods  that  no  special  laws  were  considered  necessary,  prior  to  the 
adoption  of  the  Constitution,  for  the  protection  of  the  operatives; 
but,  in  the  vast  proportions  which  these  industries  have  since  as- 
sumed, it  has  been  found  that  they  can  no  longer  be  carried  on  with 
due  regard  to  the  safety  and  health  of  those  engaged  in  them,  without 
special  protection  against  the  dangers  necessarily  incident  to  these 
employments.  In  consequence  of  this,  laws  have  been  enacted  in 
most  of  the  States  designed  to  meet  these  exigencies  and  to  secure  the 
safety  of  persons  peculiarly  exposed  to  these  dangers.  Within  this 
general  category  are  ordinances  providing  for  fire  escapes  for  hotels, 
theatres,  factories  and  other  large  buildings,  a  municipal  inspection 
of  boilers,  and  appliances  designed  to  secure  passengers  upon  rail- 
ways and  steamboats  against  the  dangers  necessarily  incident  to 
these  methods  of  transportation.  In  States  where  manufacturing 
is  carried  on  to  a  large  extent,  provision  is  made  for  the  protection 
of  dangerous  machinery  against  accidental  contact,  for  the  clean- 
liness and  ventilation  of  working  rooms,  for  the  guarding  of  well 
holes,  stairways,  elevator  shafts  and  for  the  employment  of  sanitary 
appliances.  In  others,  where  mining  is  the  principal  industry,  special 
provision  is  made  for  the  shoring  up  of  dangerous  walls,  for  ventilation 
shafts,  bore  holes,  escapement  shafts,  means  of  signalling  the  surface, 
for  the  supply  of  fresh  air  and  the  elimination,  as  far  as  possible,  of 
dangerous  gases,  for  safe  means  of  hoisting  and  lowering  cages,  for 
a  limitation  upon  the  numl)cr  of  persons  permitted  to  enter  a  cage, 
that  cages  shall  be  covered,  and  that  there  shall  be  fences  and  gates 
around  the  top  of  shafts,  besides  other  similar  precautions.  .  .  . 

Th'.'se  statutes  have  been  repeatedly  enforced  by  the  courts  of 
the  several  States;  their  validity  assumed,  and,  so  far  as  we  are 
informed,  they  have  been  uniformly  held  to  be  constitutional.  .  .  . 


SECT.  Ill]  DANGEROUS   OCCUPATIONS  823 

But  if  it  be  within  the  power  of  a  legislature  to  adopt  such  means 
for  the  protection  of  the  lives  of  its  citizens,  it  is  difficult  to  see  why 
precautions  may  not  also  be  adopted  for  the  protection  of  their 
health  and  morals.  It  is  as  much  for  the  interest  of  the  State  that 
the  public  health  should  be  preserved  as  that  life  should  be  made 
secure.  With  this  end  in  view  quarantine  laws  have  been  enacted 
in  most  if  not  all  of  the  States;  insane  asylums,  public  hosjoitals 
and  institutions  for  the  care  and  education  of  the  blind  established, 
and  special  measures  taken  for  the  exclusion  of  infected  cattle,  rags 
and  decayed  fruit.  In  other  States  laws  have  been  enacted  limiting 
the  hours  during  which  women  and  children  shall  be  employed  in 
factories;  and  while  their  constitutionality,  at  least  as  applied  to 
women,  has  been  doubted  in  some  of  the  States,  they  have  been 
generally  upheld.  .  .  . 

Upon  the  principles  above  stated,  we  think  the  act  in  question 
may  be  sustained  as  a  valid  exercise  of  the  police  power  of  the  State, 
The  enactment  does  not  profess  to  limit  the  hours  of  all  workmen, 
but  merely  those  who  are  employed  in  underground  mines,  or  in  the 
smelting,  reduction  or  refining  of  ores  or  metals.  These  employ- 
ments, when  too  long  pursued,  the  legislature  has  judged  to  be  detri- 
mental to  the  health  of  the  employes,  and,  so  long  as  there  are  rea- 
sonable grounds  for  believing  that  this  is  so,  its  decision  upon  this 
subject  cannot  be  reviewed  by  the  Federal  courts. 

While  the  general  experience  of  mankind  may  justify  us  in  be- 
lieving that  men  may  engage  in  ordinary  employments  more  than 
eight  hours  per  day  without  injury  to  their  health,  it  does  not  fol- 
low that  labor  for  the  same  length  of  time  is  innocuous  when  carried 
on  beneath  the  surface  of  the  earth,  where  the  operative  is  deprived 
of  fresh  air  and  sunlight,  and  is  frequently  subjected  to  foul  at- 
mosphere and  a  very  high  temperature,  or  to  the  influence  of  noxious 
gases,  generated  by  the  processes  of  refining  or  smelting. 

We  concur  in  the  following  observations  of  the  Supreme  Court 
of  Utah  in  this  connection  in  its  opinion  in  No.  2: 

"The  conditions  with  respect  to  health  of  laborers  in  underground 
mines  doubtless  differ  from  those  in  which  they  labor  in  smelters 
and  other  reduction  works  on  the  surface.  Unquestionably  the 
atmosphere  and  other  conditions  in  mines  and  reduction  works  differ. 
Poisonous  gases,  dust  and  impalpable  substances  arise  and  float  in 
the  air  in  stamp  mills,  smelters  and  other  works  in  which  ores  con- 
taining metals,  combined  with  arsenic  or  other  poisonous  elements 
or  agencies,  are  treated,  reduced  and  refined,  and  there  can  be  no 
doubt  that  prolonged  effort  day  after  day,  subject  to  such  conditions 
and  agencies,  will  produce  morbid,  noxious  and  often  deadl}-  effects 
in  the  human  sj^stem.  Some  organisms  and  systems  will  resist  and 
endure  such  conditions  and  effects  longer  than  others.  It  may  be 
said  that  labor  in  such  conditions  must  be  performed.  Granting 
that,  the  period  of  labor  each  day  should  be  of  a  reasonable  length. 


824  REGULATORY  LABOR   LEGISLATION         [CHAP.  XVII 

Twelve  hours  per  day  would  be  less  injurious  than  fourteen,  ten 
than  twelve  and  eight  than  ten.  The  legislature  has  named  eight. 
Such  a  period  was  deemed  reasonable."  .  .  . 

The  legislature  has  also  recognized  the  fact,  which  the  experience 
of  legislators  in  many  States  has  corroborated,  that  the  proprietors 
of  these  establishments  and  their  operatives  do  not  stand  upon  an 
equality,  and  that  their  interests  are,  to  a  certain  extent,  conflict- 
ing. The  former  naturall}^  desire  to  obtain  as  much  labor  as  possible 
from  their  employes,  while  the  latter  are  often  induced  by  the  fear 
of  discharge  to  conform  to  regulations  w^hich  their  judgment,  fairly 
exercised,  would  pronounce  to  be  detrimental  to  their  health  or 
strength.  In  other  words,  the  proprietors  laj^  down  the  rules  and 
the  laborers  are  practically  constrained  to  obey  them.  In  such  cases 
self-interest  is  often  an  unsafe  guide,  and  the  legislature  may  properly 
interpose  its  authority. 

It  ma}^  not  be  improper  to  suggest  in  this  connection  that  although 
the  prosecution  in  this  case  was  against  the  employer  of  labor,  who 
apparently,  under  the  statute  is  the  only  one  liable,  his  defence  is 
not  so  much  that  his  right  to  contract  has  been  infringed  upon,  but 
that  the  act  works  a  peculiar  hardship  to  his  employes,  whose  right 
to  labor  as  long  as  they  please  is  alleged  to  be  thereby  violated.  The 
argument  would  certainly  come  with  better  grace  and  greater  cogency 
from  the  latter  class.  But  the  fact  that  both  parties  are  of  full  age 
and  competent  to  contract  does  not  necessarily  deprive  the  State  of 
the  power  to  interfere  where  the  parties  do  not  stand  upon  an  equality, 
or  where  the  public  health  demands  that  one  party  to  the  contract 
shall  be  protected  against  himself.  "The  State  still  retains  an  in- 
terest in  his  welfare,  however  reckless  he  may  be.  The  whole  is  no 
greater  than  the  sum  of  all  the  parts,  and  when  the  individual  health, 
safety  and  welfare  are  sacrificed  or  neglected,  the  State  must  suffer." 

We  have  no  disposition  to  criticise  the  many  authorities  which 
hold  that  state  statutes  restricting  the  hours  of  labor  are  uncon- 
stitutional. Indeed,  we  are  not  called  upon  to  express  an  opinion 
upon  this  subject.  It  is  sufficient  to  say  of  them,  that  tlicy  have 
no  application  to  cases  where  the  legislature  had  adjudged  that  a 
limitation  is  necessary  for  the  preservation  of  the  health  of  employes, 
and  there  are  reasonal)le  grounds  for  believing  that  such  determina- 
tion is  supported  by  the  facts.  The  (juestion  in  each  case  is  whether 
the  legislature  has  adopted  the  statute  in  exercise  of  a  reasonable 
discretion,  or  whether  its  action  be  a  mere  excuse  for  an  unjust  dis- 
crimination, or  the  oppression,  or  spoliation  of  a  particular  class. 
The  distinction  between  these  two  (hfferent  classes  of  enactments 
cannot  be  better  stated  than  by  a  comparison  of  the  views  of  this 
court  found  in  the  opinions  in  Barbier  v.  Connolly,  113  U.  S.  27,  and 
Soon  Hing  v.  Oowley,  113  U.  S.  703,  with  those  later  expressed  in 
Yick  Wo  V.  Hopkins,"  118  U.  S.  356. 


SECT.  Ill]  DANGEROUS   OCCUPATIONS  825 

We  are  of  opinion  that  the  act  in  (juestion  was  a  vahd  exercise  of 
the  police  power  of  the  State,  and  the  judgments  of  the  Supreme 
Court  of  Utah  are,  therefore,  Affirmed} 

Mr.  Justice  Brewer  and  Mr.  Justice  Peckham  chssented. 


Hughes,  J.,  in  BALTIMORE  &  OHIO  RAILROAD  CO.  v. 

INTERSTATE  COMMERCE  COMMISSION 

221  U.  S.  612.  618-619  (1911) 

By  virtue  of  its  power  to  regulate  interstate  and  foreign  com- 
merce. Congress  may  enact  laws  for  the  safeguarding  of  the  persons 
and  property  that  are  transported  in  that  commerce  and  of  those 
who  are  employed  in  transporting  them.  Johnson  v.  Southern 
Pacific  Co.,  196  U.  S.  1;  Adair  v.  United  States,  208  U.  S.  177,  178; 
St.  Louis,  I.  M.  &  S.  Railway  Co.  v.  Taylor,  210  U.  S.  281;  Chicago, 
Burlington  &  Quincy  Railway  Co.  v.  United  States,  decided  May  15, 
1911,  220  U.  S.  559.  The  fundamental  question  here  is  whether  a 
restriction  upon  the  hours  of  labor  of  employes  who  are  connected 
with  the  movement  of  trains  in  interstate  transportation  is  com- 
prehended within  this  sphere  of  authorized  legislation.  This  ques- 
tion admits  of  but  one  answer.  The  length  of  hours  of  service  has 
direct  relation  to  the  efficiency  of  the  human  agencies  upon  which 
protection  to  life  and  property  necessarily  depends.  This  has  been 
repeatedly  emphasized  in  official  reports  of  the  Interstate  Commerce 
Commission,  and  is  a  matter  so  plain  as  to  require  no  elaboration. 
In  its  power  suitably  to  provide  for  the  safety  of  employes  and  trav- 
elers, Congress  was  not  limited  to  the  enactment  of  laws  relating  to 
mechanical  appliances,  but  it  was  also  competent  to  consider,  and 
to  endeavor  to  reduce,  the  dangers  incident  to  the  strain  of  excessive 
hours  of  duty  on  the  part  of  engineers,  conductors,  train  dispatchers, 
telegraphers,  and  other  persons  embraced  within  the  class  defined 
by  the  act.  And  in  imposing  restrictions  having  reasonable  rela- 
tion to  this  end  there  is  no  interference  with  liberty  of  contract  as 
guaranteed  by  the  Constitution,  Chicago,  Burlington  &  Quincy 
Railroad  Co.  v.  McGuire,  219  U.  S.  549.^ 

'  Compare  Barrier  Branch  of  the  Amalgamated  Miners'  Association  v.  Broken 
Hill  Proprietary  Company,  10  Com.  Arb.  Rep.  (Austraha)  15.5,  infra,  p.  898. 
2  Accord:  Chicago  &  Alton  R.  R.  Co.  v.  United  States,  247  U.  S.  197. 


826  REGULATORY  LABOR  LEGISLATION         [CHAP.  XVII 


Section  4.     Laws  Regulating  Hours  of  Labor  in  General 

LOCHNER  V.  NEW  YORK 

Supreme  Court  of  the  United  States.     1905 

198  U.  S.  45 

This  is  a  writ  of  error  to  the  County  Court  of  Oneida  County, 
in  the  State  of  New  York  (to  which  court  the  record  had  been  re- 
mitted), to  review  the  judgment  of  the  Court  of  Appeals  of  that 
State,  affirming  the  judgment  of  the  Supreme  Court,  which  itself 
affirmed  the  judgment  of  the  County  Court,  convicting  the  defend- 
ant of  a  misdemeanor  on  an  indictment  under  a  statute  of  that  State, 
known,  by  its  short  title,  as  the  labor  law.  The  section  of  the  statute 
under  which  the  indictment  was  found  is  sec.  110,  and  is  reproduced 
in  the  margin.^  .  .  . 

The  indictment  averred  that  the  defendant  "wrongfully  and 
unlawfully  required  and  permitted  an  employe  working  for  him  in 
his  biscuit,  bread  and  cake  bakery  and  confectionery  establishment, 
at  the  city  of  Utica,  in  this  county,  to  work  more  than  sixty  hours 
in  one  week,"  after  having  been  theretofore  convicted  of  a  violation 
of  the  same  act;  and  therefore,  as  averred,  he  committed  the  crime 
or  misdemeanor,  second  offense.  The  plaintiff  in  error  demurred 
to  the  indictment  on  several  grounds,  one  of  which  was  that  the 
facts  stated  did  not  constitute  a  crime.  The  demurrer  was  over- 
ruled, and  the  plaintiff  in  error  having  refused  to  plead  further,  a 
plea  of  not  guilty  was  entered  by  order  of  the  court  and  the  trial 
commenced,  and  he  was  convicted  of  misdemeanor,  second  offense, 
as  indicted,  and  sentenced  to  pay  a  fine  of  $50  and  to  stand  committed 
until  paid,  not  to  exceed  fifty  days  in  the  Oneida  County  jail.  A 
certificate  of  reasonable  doubt  was  granted  by  the  county  judge  of 
Oneida  County,  whereon  an  appeal  was  taken  to  the  Appellate 
Division  of  the  Supreme  Court,  Fourth  Department,  where  the 
judgment  of  conviction  was  affirmed.  73  App.  Div.  N.  Y.  120. 
A  further  appeal  was  then  taken  to  the  Court  of  Appeals,  where 
the  judgment  of  conviction  was  again  affirmed.    177  N.  Y.  145. 

Mr.  Justice  Peckham,  after  making  the  foregoing  statement  of 
the  facts,  delivered  the  opinion  of  thi;  court 

The  statute  necessarily  interferes  with  the  right  of  contract  be- 
tween the  employer  and  employ<5s,  concerning  the  numl^er  of  hours 

'  "Sec.  110.  Hours  of  labor  in  bakeries  and  confectionery  eslahlishrnents.  — 
No  emplojY'  shsill  be  rcquiretl  or  permitted  to  work  in  :i  hiscuit,  bread  or  cake 
bakery  or  confectionery  establishment  more  than  sixty  hours  in  any  one  week, 
or  more  than  ten  hours  in  any  one  day,  unless  for  the  purpose  of  making  a  shorter 
work  day  on  the  last  day  of  the  week;  nor  more  hours  in  any  one  week  than  will 
make  an  avcraRe  of  ten  hours  {)er  day  for  the  number  of  days  during  such  week 
in  which  such  empIoy6  shall  work." 


SECT.  IV]  HOURS  OF  LABOR  827 

in  which  the  latter  may  labor  in  the  baker}^  of  the  employer.  The 
general  right  to  make  a  contract  in  relation  to  his  business  is  part 
of  the  liberty  of  the  individual  protected  by  the  Fourteenth  Amend- 
ment of  the  Federal  Constitution.  Allgeyer  v.  Louisiana^  165  U.  S. 
578.  .  .  . 

If  the  contract  be  one  which  the  State,  in  the  legitimate  exercise 
of  its  police  power,  has  the  right  to  prohibit,  it  is  not  prevented 
from  prohibiting  it  by  the  Fourteenth  Amendment.  Contracts  in 
violation  of  a  statute,  either  of  the  Federal  or  state  government,  or 
a  contract  to  let  one's  property  for  immoral  purposes,  or  to  do  any 
other  unlawful  act,  could  obtain  no  protection  from  the  Federal 
Constitution,  as  coming  under  the  liberty  of  person  or  of  free  con- 
tract. Therefore,  when  the  State,  by  its  legislature,  in  the  assumed 
exercise  of  its  police  powers,  has  passed  an  act  which  seriously  limits 
the  right  to  labor  or  the  right  of  contract  in  regard  to  their  means 
of  livelihood  between  persons  who  are  sui  juris  (both  employer  and 
employ^),  it  becomes  of  great  importance  to  determine  which  shall 
prevail  —  the  right  of  the  individual  to  labor  for  such  time  as  he 
may  choose,  or  the  right  of  the  State  to  prevent  the  individual  from 
laboring  or  from  entering  into  any  contract  to  labor,  beyond  a  cer- 
tain time  prescribed  by  the  State.  .  .  . 

It  must,  of  course,  be  conceded  that  there  is  a  limit  to  the  valid 
exercise  of  the  police  power  by  the  State.  There  is  no  dispute  con- 
cerning this  general  proposition.  Otherwise  the  Fourteenth  Amend- 
ment would  have  no  efficacy  and  the  legislatures  of  the  States  would 
have  unbounded  power,  and  it  would  be  enough  to  say  that  any 
piece  of  legislation  was  enacted  to  conserve  the  morals,  the  health 
or  the  safety  of  the  people;  such  legislation  would  be  valid,  no  mat- 
ter how  absolutely  without  foundation  the  claim  might  be.  The 
claim  of  the  police  power  would  be  a  mere  pretext  —  become  another 
and  delusive  name  for  the  supreme  sovereignty  of  the  State  to  be 
exercised  free  from  constitutional  restraint.  This  is  not  contended 
for.  In  every  case  that  comes  before  this  court,  therefore,  where 
legislation  of  this  character  is  concerned  and  where  the  protection 
of  the  Federal  Constitution  is  sought,  the  question  necessarily  arises: 
Is  this  a  fair,  reasonable  and  appropriate  exercise  of  the  police  power 
of  the  State,  or  is  it  an  unreasonable,  unnecessary  and  arbitrary 
interference  with  the  right  of  the  individual  to  his  personal  liberty 
or  to  enter  into  those  contracts  in  relation  to  labor  which  may  seem 
to  him  appropriate  or  necessary  for  the  support  of  himself  and  his 
family?  Of  course  the  liberty  of  contract  relating  to  labor  includes 
both  parties  to  it.  The  one  has  as  much  right  to  purchase  as  the  other 
to  sell  labor. 

This  is  not  a  question  of  substituting  the  judgment  of  the  court 
for  that  of  the  legislature.  If  the  act  be  within  the  power  of  the 
State  it  is  valid,  although  the  judgment  of  the  court  might  be  totally 
opposed  to  the  enactment  of  such  a  law.     But  the  question  would 


828  REGULATORY  LABOR  LEGISLATION         [CHAP.  XVII 

still  remain:    Is  it  within  the  police  power  of  the  State?  and  that 
question  must  be  answered  by  the  court. 

The  question  whether  this  act  is  valid  as  a  labor  law,  pure  and 
simple,  may  be  dismissed  in  a  few  words.  There  is  no  reasonable 
ground  for  interfering  with  the  liberty  of  person  or  the  right  of  free 
contract,  by  detemiining  the  hours  of  labor,  in  the  occupation  of  a 
baker.  There  is  no  contention  that  bakers  as  a  class  are  not  equal 
in  intelligence  and  capacity  to  men  in  other  trades  or  manual  occu- 
pations, or  that  they  are  not  able  to  assert  their  rights  and  care  for 
themselves  without  the  protecting  arm  of  the  State,  interfering  with 
their  independence  of  judgment  and  of  action.  The}'  are  in  no  sense 
wards  of  the  State.  Viewed  in  the  light  of  a  purely-  labor  law,  with 
no  reference  whatever  to  the  question  of  health,  we  think  that  a 
law  like  the  one  before  us  involves  neither  the  safety,  the  morals 
nor  the  welfare  of  the  public,  and  that  the  interest  of  the  public  is 
not  in  the  slightest  degree  affected  by  such  an  act.  The  law  must 
be  upheld,  if  at  all,  as  a  law  pertaining  to  the  health  of  the  individual 
engaged  in  the  occupation  of  a  baker.  It  does  not  affect  any  other 
portion  of  the  public  than  those  who  are  engaged  in  that  occupation. 
Clean  and  wholesome  bread  does  not  depend  upon  whether  the  baker 
works  but  ten  hours  per  day  or  only  sixty  hours  a  week.  The  limita- 
tion of  the  hours  of  labor  does  not  come  within  the  police  power 
on  that  ground. 

It  is  a  question  of  which  of  two  powers  or  rights  shall  prevail  — 
the  power  of  the  State  to  legislate  or  the  right  of  the  individual  to 
liberty  of  person  and  freedom  of  contract.  The  mere  assertion  that 
the  subject  relates  though  but  in  a  remote  degree  to  the  public  health 
does  not  necessarily  render  the  enactment  valid.  The  act  must 
have  a  more  direct  relation,  as  a  means  to  an  end,  and  the  end  itself 
must  be  appropriate  and  legitimate,  before  an  act  can  be  held  to  be 
valid  which  interferes  with  the  general  right  of  an  individual  to  be 
free  in  his  person  and  in  his  power  to  contract  in  relation  to  his  own 
labor. 

This  case  has  caused  much  diversity  of  opinion  in  the  state  courts. 
In  the  Supreme  Court  two  of  the  five  judges  composing  the  Appel- 
late Division  dissented  from  the  judgment  affirming  the  validity  of 
the  act.  In  the  Court  of  Appeals  three  of  the  seven  judges  also  dis- 
sented from  the  judgment  upholding  the  statute.  Although  found 
in  what  is  called  a  labor  law  of  the  State,  the  Court  of  Appt^als  has 
upheld  the  act  as  one  relating  to  the  public  iiealth  —  in  other  words, 
as  a  health  law.  One  of  the  judges  of  the  Court  of  Appeals,  in  up- 
holding the  law,  stated  that,  in  his  opinion,  the  regulation  in  (juestion 
could  not  be  sustained  unless  they  were  able  to  say,  from  common 
knowledge,  that  working  in  a  l)ak(M-y  and  caiidy  factory  was  an  un- 
healthy employment,  'i'he  judge  held  that,  while  the  evidence  was 
not  uniform,  it  still  led  him  to  the  conclusion  that  the  occupation  of 
a  bnkfr  or  confectioner  wns  uiihealthv  and  tended  to  result  in  diseases 


SECT.  IV]  HOURS   OF   LABOR  829 

of  the  respiratory  organs.  Three  of  tiie  judges  dissented  from  that 
view,  and  they  thought  the  occupation  of  a  baker  was  not  to  such  an 
extent  unhealthy  as  to  warrant  the  interference  of  the  legislature 
with  the  liberty  of  the  individual. 

We  think  the  limit  of  the  police  power  has  been  reached  and  passed 
in  this  case.  There  is,  in  our  judgment,  no  reasonable  foundation 
for  holding  this  to  be  necessary  or  appropriate  as  a  health  law  to 
safeguard  the  public  health  or  the  health  of  the  individuals  who  are 
following  the  trade  of  a  baker.  If  this  statute  be  valid,  and  if,  there- 
fore, a  proper  case  is  made  out  in  which  to  deny  the  right  of  an  in- 
dividual, sui  juris,  as  employer  or  employe,  to  make  contracts  for 
the  labor  of  the  latter  under  the  protection  of  the  provisions  of  the 
Federal  Constitution,  there  would  seem  to  be  no  length  to  which 
legislation  of  this  nature  might  not  go.  .  .  . 

.  We  think  that  there  can  be  no  fair  doubt  that  the  trade  of  a  baker, 
in  and  of  itself,  is  not  an  unhealthy  one  to  that  degree  which  would 
authorize  the  legislature  to  interfere  with  the  right  to  labor,  and 
with  the  right  of  free  contract  on  the  part  of  the  individual,  either 
as  employer  or  emploj^e.  In  looking  through  statistics  regarding  all 
trades  and  occupations,  it  may  be  true  that  the  trade  of  a  baker 
does  not  appear  to  be  as  healthy  as  some  other  trades,  and  is  also 
vastly  more  healthy  than  still  others.  To  the  common  understand- 
ing the  trade  of  a  baker  has  never  been  regarded  as  an  unhealthy 
one.  Very  likely  physicians  would  not  recommend  the  exercise  of 
that  or  of  any  other  trade  as  a  remedy  for  ill  health.  Some  occupa- 
tions are  more  healthy  than  others,  but  we  think  there  are  none  which 
might  not  come  under  the  power  of  the  legislature  to  supervise  and 
control  the  hours  of  working  therein,  if  the  mere  fact  that  the  oc- 
cupation is  not  absolutely  and  perfectly  healthy  is  to  confer  that 
right  upon  the  legislative  department  of  the  Government.  It  might 
be  safely  affirmed  that  almost  all  occupations  more  or  less  affect  the 
health.  .  .  . 

The  act  is  not,  within  any  fair  meaning  of  the  term,  a  health 
law,  but  is  an  illegal  interference  with  the  rights  of  individuals,  both 
employers  and  employes,  to  make  contracts  regarding  labor  upon 
such  terms  as  they  may  think  best,  or  which  they  may  agree  upon 
with  the  other  parties  to  such  contracts.  Statutes  of  the  nature  of 
that  under  review,  limiting  the  hours  in  which  grown  and  intelligent 
men  may  labor  to  earn  their  living,  are  mere  meddlesome  inter- 
ferences with  the  right  of  the  individual,  and  they  are  not  saved 
from  condemnation  by  the  claim  that  they  are  passed  in  the  exercise 
of  the  police  power  and  upon  the  subject  of  the  health  of  the  in- 
dividual whose  rights  are  interfered  with,  unless  there  be  some  fair 
ground,  reasonable  in  and  of  itself,  to  say  that  there  is  material 
danger  to  the  public  health  or  to  the  health  of  the  employes,  if  the 
hours  of  labor  are  not  curtailed.  .  .  . 

It  was  further  urged  on  the  argument  that  restricting  the  hours  of 


830  REGULATORY  LABOR  LEGISLATION         [CHAP.  XVII 

labor  in  the  case  of  bakers  was  valid  because  it  tended  to  cleanliness 
on  the  part  of  the  workers,  as  a  man  was  more  apt  to  be  cleanly  when 
not  overworked,  and  if  cleanly  then  his  "output"  was  also  more 
likely  to  be  so.  .  .  .  In  our  judgment  it  is  not  possible  in  fact  to 
discover  the  connection  between  the  number  of  hours  a  baker  may 
work  in  the  bakery  and  the  healthful  quality  of  the  bread  made  by 
the  workman.  The  connection,  if  any  exists,  is  too  shadowy  and  thin 
to  build  any  argument  for  the  interference  of  the  legislature.  If  the 
man  works  ten  hours  a  day  it  is  all  right,  but  if  ten  and  a  half  or 
eleven  his  health  is  in  danger  and  his  bread  may  be  unhealthful, 
and,  therefore,  he  shall  not  be  permitted  to  do  it.  This,  we  think, 
is  unreasonable  and  entirely  arbitrary.  .  .  . 

It  is  manifest  to  us  that  the  limitation  of  the  hours  of  labor  as 
provided  for  in  this  section  of  the  statute  under  which  the  indict- 
ment was  found,  and  the  plaintiff  in  error  convicted,  has  no  such 
direct  relation  to  and  no  such  substantial  effect  upon  the  health  of 
the  employe,  as  to  justify  us  in  regarding  the  section  as  really  a 
health  law.  It  seems  to  us  that  the  real  object  and  purpose  were 
simply  to  regulate  the  hours  of  labor  between  the  master  and  his 
employes  (all  being  men,  sui  juris),  in  a  private  business,  not  dan- 
gerous in  any  degree  to  morals  or  in  any  real  and  substantial  degree, 
to  the  health  of  the  employes.  Under  such  circumstances  the  freedom 
of  master  and  employe  to  contract  with  each  other  in  relation  to 
their  employment,  and  in  defining  the  same,  cannot  be  prohibited  or 
interfered  with,  without  violating  the  Federal  Constitution. 

The  judgment  of  the  Court  of  Appeals  of  New  York  as  well  as 
that  of  the  Supreme  Court  and  of  the  County  Court  of  Oneida 
County  must  be  reversed  and  the  case  remanded  to  the  County 
Court  for  further  proceedings  not  inconsistent  with  this  opinion. 

Reversed. 

Mr.  Justice  Harlan,  with  whom  Mr.  Justice  White  and  Mr. 
Justice  Day  concurred,  dissenting. 

While  this  court  has  not  attempted  to  mark  the  precise  boundaries 
of  what  is  called  the  police  power  of  the  State,  the  existence  of  the 
power  has  been  uniformly  recognized,  both  ])y  the  Federal  and  state 
courts. 

All  the  cases  agree  that  this  power  extends  at  least  to  the  protec- 
tion of  the  lives,  the  health  and  the  safety  of  the  public  against  the 
injurious  exercise  by  any  citizen  of  his  own  rights.  .  .  . 

I  take  it  to  be  firmly  established  that  what  is  called  the  liberty  of 
contract  may,  within  certain  limits,  be  subjected  to  regulations 
designed  and  calculated  to  promote  the  general  welfare  or  to  guard 
the  public  health,  the  public  morals  or  the  jnilylic  safety.   ... 

It  may  be  that  the  statute  had  its  origin,'  in  i)art,  in  the  belief 
that  employers  and  employes  in  such  establishments  were  not  upon 
an  equal  footing,  and  that  the  necessities  of  the  latter  often  com- 


SECT.  IV]  HOURS  OF  LABOR  831 

pelled  them  to  submit  to  such  exactions  as  unduly  taxed  their 
strength.  Be  this  as  it  may,  the  statute  must  be  taken  as  expressing 
the  behef  of  the  people  of  New  York  that,  as  a  general  rule,  and  in  the 
case  of  the  average  man,  labor  in  excess  of  sixty  hours  during  a  week 
in  such  establishments  may  endanger  the  health  of  those  who  thus 
labor.  Whether  or  not  this  be  wise  legislation  it  is  not  the  province 
of  the  court  to  inquire.  .  .  .  But  ...  I  find  it  impossible,  in  view 
of  common  experience,  to  say  that  there  is  here  no  real  or  substantial 
relation  between  the  means  employed  by  the  State  and  the  end 
sought  to  be  accomplished  by  its  legislation.  .  .  . 

Professor  Hirt  in  his  treatise  on  the  "Diseases  of  the  Workers" 
has  said:  "The  labor  of  the  bakers  is  among  the  hardest  and  most 
laborious  imaginable,  because  it  has  to  be  performed  under  con- 
ditions injurious  to  the  health  of  those  engaged  in  it.  It  is  hard, 
very  hard  work,  not  only  because  it  requires  a  great  deal  of  physical 
exertion  in  an  overheated  workshop  and  during  unreasonably  long 
hours,  but  more  so  because  of  the  erratic  demands  of  the  public, 
compelling  the  baker  to  perform  the  greater  part  of  his  work  at  night, 
thus  depriving  him  of  an  opportunity  to  enjoy  the  necessary  rest 
and  sleep,  a  fact  which  is  highly  injurious  to  his  health."  Another 
writer  says:  "The  constant  inhaling  of  flour  dust  causes  inflammation 
of  the  lungs  and  of  the  bronchial  tubes.  The  eyes  also  suffer  through 
this  dust,  which  is  responsible  for  the  many  cases  of  running  eyes 
among  the  bakers.  The  long  hours  of  toil  to  which  all  bakers  are 
subjected  produce  rheumatism,  cramps  and  swollen  legs.  The  in- 
tense heat  in  the  workshops  induces  the  workers  to  resort  to  cooling 
drinks,  which  together  with  their  habit  of  exposing  the  greater  part 
of  their  bodies  to  the  change  in  the  atmosphere,  is  another  source  of 
a  number  of  diseases  of  various  organs.  Nearly  all  bakers  are  pale- 
faced  and  of  more  delicate  health  than  the  workers  of  other  crafts, 
which  is  chiefly  due  to  their  hard  work  and  their  irregular  and  un- 
natural mode  of  living,  whereby  the  power  of  resistance  against 
disease  is  greatly  diminished.  The  average  age  of  a  baker  is  below 
that  of  other  workinen;  they  seldom  live  over  their  fiftieth  year, 
most  of  them  dying  between  the  ages  of  forty  and  fifty.  .  .  . 

In  the  Eighteenth  Annual  Report  by  the  New  York  Bureau  of 
Statistics  of  Labor  it  is  stated  that  among  the  occupations  involv- 
ing exposure  to  conditions  that  interfere  with  nutrition  is  that  of  a 
baker  (p.  52).  In  that  Report  it  is  also  stated  that  "from  a  social 
point  of  view,  production  will  be  increased  by  any  change  in  in- 
dustrial organization  which  diminishes  the  number  of  idlers,  paupers 
and  criminals.  Shorter  hours  of  work,  bj^  allowing  higher  standards 
of  comfort  and  purer  family  life,  promise  to  enhance  the  industrial 
eflficiency  of  the  wage-working  class  —  improved  health,  longer  life, 
more  content  and  greater  intelligence  and  inventiveness"  (p.  82).  .  .  . 

The  judgment  in  my  opinion  should  be  affirmed. 


832  REGULATORY   LABOR  LEGISLATION         [CHAP.  XVII 

Mr.  Justice  Holmes  dissenting. 

I  regret  sincerely  that  I  am  unable  to  agree  with  the  judgment 
in  this  case,  and  that  I  think  it  my  duty  to  express  my  dissent. 

This  case  is  decided  upon  an  economic  theory  which  a  large  part 
of  the  country  does  not  entertain.  If  it  were  a  question  whether  I 
agreed  with  that  theory,  I  should  desire  to  study  it  further  and  long 
before  making  up  my  mind.  But  I  do  not  conceive  that  to  be  my 
duty,  because  I  strongly  believe  that  my  agreement  or  disagreement 
has  nothing  to  do  with  the  right  of  a  majority  to  embody  their  opin- 
ions in  law.  It  is  settled  by  various  decisions  of  this  court  that  state 
constitutions  and  state  laws  may  regulate  life  in  many  ways  which 
we  as  legislators  might  think  as  injudicious  or  if  you  like  as  tyrannical 
as  this,  and  which  equally  with  this  interfere  with  the  liberty  to  con- 
tract. Sunday  laws  and  usury  laws  are  ancient  examples.  A  more 
modern  one  is  the  prohibition  of  lotteries.  The  liberty  of  the  citizen 
to  do  as  he  likes  so  long  as  he  does  not  interfere  with  the  liberty  of 
others  to  do  the  same,  which  has  been  a  shibboleth  for  some  well- 
known  writers,  is  interfered  with  by  school  laws,  by  the  Post  Office, 
by  every  state  or  municipal  institution  which  takes  his  money  for 
purposes  thought  desirable,  whether  he  likes  it  or  not.  The  Four- 
teenth Amendment  does  not  enact  Mr.  Herbert  Spencer's  Social 
Statics.  The  other  day  we  sustained  the  Massachusetts  vaccination 
law.  Jacobson  v.  Massachusetts,  197  U.  S.  11.  United  States  and 
state  statutes  and  decisions  cutting  down  the  liberty  to  contract  by 
way  of  combination  are  familiar  to  this  court.  Northern  Securities 
Co.  V.  United  States,  193  U.  S.  197.  Two  years  ago  we  upheld  the 
prohibition  of  sales  of  stock  on  margins  or  for  future  delivery  in  the 
constitution  of  California.  Otis  v.  Parker,  187  U.  S.  606.  The  de- 
cision sustaining  an  eight-hour  law  for  miners  is  still  recent.  Holden 
V.  Hardy,  169  U.  S.  366.  Some  of  these  laws  embody  convictions  or 
prejudices  which  judges  are  likely  to  share.  Some  may  not.  But 
a  constitution  is  not  intended  to  embody  a  particular  economic 
theory,  whether  of  paternalism  and  the  organic  relation  of  the  citizen 
to  the  State  or  of  laissezfaire.  It  is  made  for  people  of  fundamentally 
differing  views,  and  the  accident  of  our  finding  certain  opinions  natural 
and  familiar  or  novel  and  even  shocking  ought  not  to  conclude  our 
judgment  upon  the  question  whether  statutes  embodying  tliem 
conflict  with  the  (constitution  of  the  United  States. 

(Wnieral  propositions  do  not  decide  concrete  cases.  The  decision 
will  depend  on  a  judgment  or  intuition  more  subtle  than  any  artic- 
ulate major  premise.  But  I  think  that  the  proposition  just  stated, 
if  it  is  accepted,  will  carry  us  far  toward  the  end.  Every  opinion 
tends  to  l)ecome  a  law.  I  think  that  the  word  liberty  in  the  Four- 
teenth Amendment  is  perverted  when  it  is  held  to  i)revent  the  natural 
outcome  of  a  dominant  opinion,  unless  it  can  l)e  said  that  a  rational 
and  fair  man  necessarily  would  admit  that  the  statute  proposed 
would  infringe  fundamental  principles  as  they  have  been  understood 


SECT.  IV]  HOURS   OF  LABOR  833 

by  the  traditions  of  our  people  and  our  law.  It  does  not  need  re- 
search to  show  that  no  such  sweeping  condemnation  can  be  passed 
upon  the  statute  before  us.  A  reasonable  man  might  think  it  a  proper 
measure  on  the  score  of  health.  Men  whom  I  certainly  could  not 
pronounce  unreasonable  would  uphold  it  as  a  first  instalment  of  a 
general  regulation  of  the  hours  of  work.  Whether  in  the  latter 
aspect  it  would  be  open  to  the  charge  of  inequality  I  think  it  un- 
necessary to  discuss.^ 

BUNTING  V.  OREGON 
Supreme  Court  of  the  United  States.     1917 
243  U.  S.  426 

Mr.  Justice  McKenna  delivered  the  opinion  of  the  court. 

Indictment  charging  a  violation  of  a  statute  of  the  State  of  Oregon, 
sec.  2  of  which  provides  as  follows: 

"No  person  shall  be  employed  in  any  mill,  factory  or  manufactur- 
ing establishment  in  this  State  more  than  ten  hours  in  any  one  day, 
except  watchmen  and  employees  when  engaged  in  making  necessary 
repairs,  or  in  case  of  emergency,  where  life  or  property  is  in  imminent 
danger;  provided,  however,  employees  may  work  overtime  not  to 
exceed  three  hours  in  any  one  day,  conditioned  that  payment  be 
made  for  said  overtime  at  the  rate  of  time  and  one-half  of  the  regular 
wage." 

A  violation  of  the  act  is  made  a  misdemeanor,  and  in  pursuance 
of  this  provision  the  indictment  was  found.  It  charges  a  violation 
of  the  act  by  plaintiff  in  error,  Bunting,  by  employing  and  causing 
to  work  in  a  flour  mill  belonging  to  the  Lakeview  Flouring  Mills,  a 
corporation,  one  Hammersly  for  thirteen  hours  in  one  daj^,  Ham- 
mersly  not  being  within  the  excepted  conditions,  and  not  being  paid 
the  rate  prescribed  for  overtime. 

A  demurrer  was  filed  to  the  indictment,  alleging  against  its  suffi- 
ciency that  the  law  upon  which  it  was  based  is  invalid  because  it 
violates  the  Fourteenth  Amendment  of  the  Constitution  of  the 
United  States  and  the  Constitution  of  Oregon. 

The  demurrer  was  overruled;  and  the  defendant,  after  arraign- 
ment, plea  of  not  guilty  and  trial,  was  found  guilty.  A  motion  in 
arrest  of  judgment  was  denied  and  he  was  fined  $50.  The  judgment 
was  affirmed  by  the  Supreme  Court  of  the  State.  The  Chief  Justice 
of  the  court  then  allowed  this  writ  of  error. 

The  consonance  of  the  Oregon  law  with  the  Fourteenth  Amend- 
ment is  the  question  in  the  case,  and  this  depends  upon  whether  it 

^  With  the  viewpoint  of  the  court  in  this  case  may  be  compared  the  viewpoint 
of  the  Australian  Court  of  Conciliation  and  Arbitration  (see  cases  in  Chap.  19, 
section  2,  infra),  and  of  the  Kansas  Court  of  Industrial  Relations  (see  cases  in 
Chap.  19,  section  4,  infra). 


834  REGULATOKY  LABOR  LEGISLATION         [CHAP.  XVII 

is  a  proper  exercise  of  the  police  power  of  the  State,  as  the  Supreme 
Court  of  the  State  decided  that  it  is. 

That  the  poHce  power  extends  to  health  regulations  is  not  denied, 
but  it  is  denied  that  the  law  has  such  purpose  or  justification.  It  is 
contended  that  it  is  a  wage  law,  not  a  health  regulation,  and  takes 
the  property  of  plaintiff  in  error  without  due  process.  The  conten- 
tion presents  two  questions:  (1)  Is  the  law  a  wage  law,  or  an  hours 
of  service  law?    And  (2)  if  the  latter,  has  it  equality  of  operation? 

Section  1  of  the  law  expresses  the  policy  that  impelled  its  enact- 
ment to  be  the  interest  of  the  State  in  the  physical  well-being  of  its 
citizens  and  that  it  is  injurious  to  their  health  for  them  to  work  "in 
any  mill,  factory  or  manufacturing  establishment"  more  than  ten 
hours  in  any  one  day;  and  sec.  2,  as  we  have  seen,  forbids  their  em- 
plojinent  in  those  places  for  a  longer  time.  If,  therefore,  we  take  the 
law  at  its  word  there  can  be  no  doubt  of  its  purpose,  and  the  Supreme 
Court  of  the  State  has  added  the  confirmation  of  its  decision,  by 
declaring  that  "the  aim  of  the  statute  is  to  fix  the  maximum  hours 
of  service  in  certain  industries.  The  act  makes  no  attempt  to  fix 
the  standard  of  wages.  No  maximum  or  minimum  wage  is  named. 
That  is  left  wholly  to  the  contracting  parties." 

It  is,  however,  urged  that  we  are  not  bound  by  the  declaration 
of  the  law  or  the  decision  of  the  court.  In  other  words,  and  to  use 
counsel's  language,  "the  legislative  declaration  of  necessity,  even 
if  the  act  followed  such  declaration,  is  not  binding  upon  this  court. 
Coppage  V.  Kansas,  236  U.  S.  1."  Of  course,  mere  declaration  can- 
not give  character  to  a  law  nor  turn  illegal  into  legal  operation,  and 
when  such  attempt  is  palpable  this  court  necessarily  has  the  power 
of  review. 

But  does  either  the  declaration  or  the  decision  reach  such  extreme? 
Plaintiff  in  error,  in  contending  for  this  and  to  establish  it,  makes 
paramount  the  provision  for  overtime;  in  other  words,  makes  a 
limitation  of  the  act  the  extent  of  the  act  —  indeed,  asserts  that  it 
gives,  besides,  character  to  the  act,  illegal  character. 

To  assent  to  this  is  to  ascribe  to  the  legislation  such  improvidence 
of  expression  as  to  intend  one  thing  and  effect  another,  or  artfulness 
of  expression  to  disguise  illegal  purpose.  We  are  reluctant  to  do 
either  and  we  think  all  the  provisions  of  the  law  can  be  accommodated 
without  doing  cither. 

First,  as  to  plaintiff  in  error's  attack  upon  the  law.  He  says:  "The 
law  is  not  a  ten-hour  law;  it  is  a  tliirteen-hour  law  designed  solely 
for  the  purpose  of  compelling  the  employer  of  labor  in  mills,  fac- 
tories and  manufacturing  establishments  to  pay  more  for  labor  than 
the  actual  market  value  thereof."  And  further:  "It  is  a  ten-hour 
law  for  the  purpose  of  taking  the  empl(»y(M-'s  j)roperty  from  him  and 
giving  it  to  the  employ^;  it  is  a  thirteen-hour  law  for  the  purpose 
of  protecting  the  health  of  the  employ^."  To  this  plaintiff  in  error 
adds  that  he  was  convicted,  not  for  working  an  employee  during  a 


SECT.  IV]  HOURS   OF  LABOR  835 

busy  season  for  more  than  ten  hours,  but  for  not  paying  him  more 
than  the  market  value  of  his  services. 

The  elements  in  this  contention  it  is  difficult  to  resolve  or  estimate. 
The  charge  of  pretense  against  the  legislation  we,  as  we  have  already 
said,  cannot  assent  to.  The  assumption  that  plaintiff  in  error  was 
convicted  for  not  paying  more  in  a  busy  season  than  the  market 
value  of  the  services  rendered  him  or  that  under  the  law  he  will 
have  to  do  so,  he  gives  us  no  evidence  to  support.  If  there  was  or 
should  be  an  increase  of  demand  for  his  products,  there  might  have 
been  or  may  be  an  increase  of  profits.  However,  these  are  circum- 
stances that  cannot  be  measured,  and  we  prefer  to  consider  with 
more  exactness  the  overtime  provision. 

There  is  a  certain  verbal  plausibility  in  the  contention  that  it  was 
intended  to  permit  13  hours'  work  if  there  be  151  hours'  pay,  but  the 
plausibility  disappears  upon  reflection.  The  provision  for  overtime 
is  permissive,  in  the  same  sense  that  any  penalty  may  be  said  to  be 
permissive.  Its  purpose  is  to  deter  by  its  burden  and  its  adequacy 
for  this  was  a  matter  of  legislative  judgment  under  the  particular 
circumstances.  It  may  not  achieve  its  end,  but  its  insufficiency  can- 
not change  its  character  from  penalty  to  permission.  Besides,  it  is 
to  be  borne  in  mind  that  the  legislature  was  dealing  with  a  matter 
in  which  many  elements  were  to  be  considered.  It  might  not  have 
been  possible,  it  might  not  have  been  wise,  to  make  a  rigid  prohibi- 
tion. We  can  easily  realize  that  the  legislature  deemed  it  sufficient 
for  its  policy  to  give  to  the  law  an  adaptation  to  occasions  different 
from  special  cases  of  emergency  for  which  it  provided,  occasions  not 
of  such  imperative  necessity,  and  yet  which  should  have  some  ac- 
commodation —  abuses  prevented  by  the  requirement  of  higher 
wages.  Or  even  a  broader  contention  might  be  made  that  the  legis- 
lature considered  it  a  proper  policy  to  meet  the  conditions  long 
existent  by  a  tentative  restraint  of  conduct  rather  than  by  an  abso- 
lute restraint,  and  achieve  its  purpose  through  the  interest  of  those 
affected  rather  than  by  the  positive  fiat  of  the  law. 

We  cannot  know  all  of  the  conditions  that  impelled  the  law  or  its 
particular  form.  The  Supreme  Court,  nearer  to  them,  describes  the 
law  as  follows:  "It  is  clear  that  the  intent  of  the  law  is  to  make  10 
hours  a  regular  day's  labor  in  the  occupations  to  which  reference  is 
made.  Apparently  the  provisions  for  permitting  labor  for  the  over- 
time on  express  conditions  were  made  in  order  to  facilitate  the  en- 
forcement of  the  law,  and  in  the  nature  of  a  mild  penalty  for  employ- 
ing one  not  more  than  three  hours  overtime.  It  might  be  regarded 
as  more  difficult  to  detect  violations  of  the  law  by  an  emplojuient 
for  a  shorter  time  than  for  a  longer  time.  This  penalty  also  goes  to 
the  employee  in  case  the  employer  avails  himself  of  the  overtime 
clause." 

But  we  need  not  cast  about  for  reasons  for  the  legislative  judgment. 
We  are  not  required  to  be  sure  of  the  precise  reasons  for  its  exercise 


836  REGULATORY  LABOR  LEGISLATION         [CHAP.  XVII 

or  be  convinced  of  the  wisdom  of  its  exercise.  Rast  v.  Van  Deman  & 
Lewis  Co.,  240  U.  S.  342,  365.  It  is  enough  for  our  decision  if  the 
legislation  under  review  was  passed  in  the  exercise  of  an  admitted 
power  of  government;  and  that  it  is  not  as  complete  as  it  might  be, 
not  as  rigid  in  its  prohibitions  as  it  might  be,  gives  perhaps  evasion 
too  much  play,  is  lighter  in  its  penalties  than  it  might  be,  is  no  im- 
peachment of  its  legality.  This  may  be  a  blemish,  giving  opportunity 
for  criticism  and  difference  in  characterization,  but  the  constitutional 
validity  of  legislation  cannot  be  determined  by  the  degree  of  exact- 
ness of  its  provisions  or  remedies.  New  policies  are  usually  tenta- 
tive in  their  beginnings,  advance  in  firmness  as  they  advance  in 
acceptance.  They  do  not  at  a  particular  moment  of  time  spring 
full-perfect  in  extent  or  means  from  the  legislative  brain.  Time  msiy 
be  necessary  to  fashion  them  to  precedent  customs  and  conditions 
and  as  they  justify  themselves  or  otherwise  they  pass  from  militancy 
to  triumph  or  from  question  to  repeal. 

But  passing  general  considerations  and  coming  back  to  our  im- 
mediate concern,  which  is  the  validity  of  the  particular  exertion  of 
power  in  the  Oregon  law,  our  judgment  of  it  is  that  it  does  not  tran- 
scend constitutional  limits. 

This  case  is  submitted  by  plaintiff  in  error  upon  the  contention 
that  the  law  is  a  wage  law  not  an  hours  of  service  law,  and  he  rests 
his  case  on  that  contention.  To  that  contention  we  address  our 
decision  and  do  not  discuss  or  consider  the  broader  contentions  of 
counsel  for  the  State  that  would  justify  the  law  even  as  a  regulation 
of  wages. 

There  is  a  contention  made  that  the  law,  even  regarded  as  regulat- 
ing hours  of  service,  is  not  either  necessary  or  useful  "for  preserva- 
tion of  the  health  of  employes  in  mills,  factories  and  manufacturing 
establishments."  The  record  contains  no  facts  to  support  the  con- 
tention, and  against  it  is  the  judgment  of  the  legislature  and  the 
Supreme  Court,  which  said:  "In  view  of  the  well-known  fact  that 
the  custom  in  our  industries  does  not  sanction  a  longer  service  than 
10  hours  per  day,  it  cannot  be  held,  as  a  matter  of  law,  that  the  legis- 
lative requirement  is  unreasonable  or  arbitrary  as  to  hours  of  labor. 
Statistics  show  that  the  average  daily  working  time  among  work- 
ingmen  in  different  countries  is,  in  Australia,  8  hours;  in  Great 
Britain,  9;  in  the  United  States,  9f;  in  Denmark,  9f ;  in  Norway, 
10;  Sweden,  France,  and  Switzerland,  10^;  Germany,  lOj;  Bel- 
gium, Italy,  and  Austria,  11;  and  in  Russia,  12  hours." 

The  next  contention  of  plaiiitiiT  'n  error  is  that  tlu>  law  discriminates 
against  mills,  factories  and  manufacturing  establishments  in  that  it 
requires  that  a  manufacturer,  without  reason  other  than  the  fiat  of 
the  legislature,  shall  pay  for  a  commodity,  meaning  labor,  one  and 
one-half  times  the  mnrket  value  thereof  while  other  pe()|)le  pur- 
chasing labor  in  like  manner  in  the  open  market  are  not  sul)ject('<l 
to  the  same;  burden.     But  the  basis  of  the  contention  is  that  which 


SECT.  V]  MINIMUM  WAGE  LAWS  837 

we  have  already  disposed  of,  that  is,  that  the  law  rejj;ulates  wages, 
not  hours  of  service.  Regarding  it  as  the  latter,  there  is  a  basis  for 
the  classification. 

Further  discussion  we  deem  unnecessary. 

Judgment  affirmed} 

The  Chief  Justice,  Mr.  Justice  Van  Devanter  and  Mr.  Justice 
McReynolds,  dissent. 

Mr.  Justice  Brandeis  took  no  part  in  the  consideration  and 
decision  of  the  ease. 


Section  5.     Minimum  Wage  Laws  ^ 

STETTLER  v.  O'HARA 

Supreme  Court  of  Oregon.     1914 

69  Ore.  519 

This  is  a  suit  by  Frank  C.  Stettler  against  Edwin  V.  O'Hara, 
Bertha  Moores  and  Amedee  M.  Smith,  constituting  the  Industrial 
Welfare  Commission  of  the  State  of  Oregon,  to  vacate  and  annul  an 
order  of  the  commission,  and  enjoin  its  enforcement.  The  facts  are 
as  follows: 

On  February  17,  1913,  the  legislative  assembly  passed  an  act 
entitled  "To  protect  the  lives  and  health  and  morals  of  women  and 
minor  workers,  and  to  establish  an  Industrial  Welfare  Commission 
and  define  its  powers  and  duties,  and  to  provide  for  the  fixing  of 
minimum  wages  and  maxinuun  hours  and  standard  conditions  of 
labor  for  such  workers,  and  to  provide  penalties  for  violation  of  this 
act."  .  .  . 

The  first  section  provides: 

"It  shall  be  unlawful  to  employ  women  or  minors  in  any  occupa- 
tion within  the  State  of  Oregon  for  unreasonably  long  hours;  and 
it  shall  be  unlawful  to  employ  women  or  minors  in  any  occupation 
within  the  State  of  Oregon  under  such  surroundings  or  conditions  — 
sanitary  or  otherwise  —  as  may  be  detrimental  to  their  health  or 
morals;  and  it  shall  be  unlawful  to  employ  w^omen  in  any  occupation 
within  the  State  of  Oregon  for  wages  which  are  inadeqviate  to  suppl}^ 
the  necessary  cost  of  living  and  to  maintain  them  in  health;    and  it 

'  Compare  Amalgamated  Assn.  of  Street  and  Electric  Railway  Employees  of 
America  v.  The  Joplin  &  Pittsburg  Ry.  Co.,  Kansas  Court  of  Industrial  Relations, 
Docket  No.  3653,  infra,  p.  933;  Barrier  Branch  of  the  Amalgamated  Miners' 
Assn.  V.  Broken  Hill  Proprietary  Co.,  10  Com.  Arb.  Rep.  (Australia)  155,  infra, 
p.  898. 

2  Upon  Minimum  Wage  Laws  in  the  United  States,  see  Lindley  D.  Clark,  Mini- 
mum-Wage Laws  of  the  United  States,  U.  S.  Bureau  of  Labor  Statistics,  Bulletin 
No.  285  (July,  1921).    See  also  the  references  in  note  1,  p.  800,  supra. 


838  REGULATORY  LABOR  LEGISLATION         [CHAP.  XVII 

shall  be  unlawful  to  employ  minors  in  any  occupation  within  the 
State  of  Oregon  for  unreasonably  low  wages." 

Then  follows  the  creation  of  the  commission  under  the  name  of 
"Industrial  Welfare  Commission,"  to  be  appointed  by  the  Governor, 
and  provisions  defining  its  duties.    Sec.  4  provides: 

"Said  commission  is  hereby  authorized  and  empowered  to  as- 
certain and  declare,  in  the  manner  hereinafter  provided,  the  follow- 
ing things:  (a)  Standards  of  hours  of  employment  for  women  or  for 
minors  and  what  are  unreasonabl}'  long  hours  for  women  or  for 
minors  in  any  occupation  within  the  State  of  Oregon ;  (b)  standards 
of  conditions  of  labor  for  women  or  for  minors  in  any  occupation 
within  the  State  of  Oregon  and  what  surroundings  or  conditions  — 
sanitary  or  otherwise  —  are  detrimental  to  the  health  or  morals  of 
women  or  of  minors  in  any  such  occupation;  (c)  standards  of  mini- 
mum wages  for  women  in  any  occupation  within  the  State  of  Oregon 
and  what  wages  are  inadequate  to  supply  the  necessary  cost  of  liv- 
ing to  any  such  women  workers  and  to  maintain  them  in  good  health ; 
and  (d)  standards  of  minimum  wages  for  minors  in  any  occupation 
within  the  State  of  Oregon  and  what  wages  are  unreasonably  low 
for  any  such  minor  workers." 

Section  8  provides,  among  other  things,  that  the  "commission  ma^' 
call  and  convene  a  conference  for  the  purpose  and  with  the  powers  of 
considering  and  inquiring  into  and  reporting  on  the  subject  investi- 
gated by  said  commission  and  submitted  by  it  to  such  conference. 
Such  conference  shall  be  composed  of  not  more  than  three  represen- 
tatives of  the  employers  in  said  occupation  and  of  an  equal  number 
of  the  representatives  of  the  employees  in  said  occupation  and  of  not 
more  than  three  disinterested  persons  representing  the  public  and 
of  one  or  more  commissioners,"  and  the  duties  of  such  conference, 
which  shall  report  the  result  of  its  investigations  with  recommenda- 
tions to  the  commission. 

Section  9  provides  that,  upon  the  receipt  of  the  report  from  the  con- 
ference, and  the  approval  of  its  recommendations,  the  commission 
may  make  and  render  such  order  as  may  be  proper  or  necessary  to 
adopt  such  recommendations,  and  to  carry  the  same  into  effect,  and 
require  all  employers  in  the  occupation  affected  tluM-oby  to  observe 
and  comply  with  such  recommendations  and  said  order.  The  act 
contains  other  provisions  giving  the  commission  and  conference 
power  and  authority  to  investigate  the  matters  being  considered.  .  .  . 
The  (lef(>ii(laiits  were  duly  appointed  by  the  (lovernor  as  such  com- 
mission. It  thereafter  called  a  conference  as  provided,  which  re- 
ported to  the  commission,  making  certain  reconuuendations,  which 
were  approved,  and  based  upon  such  recommendations  it  made  the 
following  order: 

"Tlie  Industrial  Welfare  Commission  of  the  State  of  Oregon  hereby 
orders  that  no  person,  firm,  corporation,  or  association  owning  or 


SECT.  V]  MINIMUM  WAGE   LAWS  839 

operating  any  manufacturing  establishment  in  the  City  of  Portland, 
Oregon,  shall  employ  any  woman  in  said  establishment  for  more 
than  nine  hours  a  day,  or  fifty  hours  a  week;  or  fix,  allow,  or  permit 
for  any  woman  employee  in  said  establishment  a  noon  lunch  period  of 
less  than  forty-five  minutes  in  length;  or  employ  any  experienced 
adult  woman  worker,  paid  by  time  rates  of  payment,  in  said  estab- 
lishment at  a  weekly  wage  of  less  than  $8.64,  any  lesser  amount 
being  hereby  declared  inadequate  to  supply  the  necessary  cost  of 
living  to  such  woman  factory  workers,  and  to  maintain  them  in 
health." 

The  amended  complaint  sets  out  all  these  matters  in  greater  de- 
tail, to  which  the  defendants  demurred  on  various  grounds,  the 
first  of  which  raises  the  questions  here  discussed,  namely:  That 
"it  does  not  state  facts  showing  that  the  act  and  order  complained 
of  is  an  unreasonable  exercise  of  the  police  power  of  the  state."  The 
demurrer  was  sustained,  and  the  plaintiff  elected  to  stand  on  the 
amended  complaint.  Judgment  was  rendered  dismissing  the  suit, 
and  the  plaintiff  appeals. 

Mr.  Justice  Eakin  delivered  the  opinion  of  the  court. 

The  purpose  of  this  suit  is  to  have  determined  judicially  whether 
either  the  Fourteenth  Amendment  of  the  Federal  Constitution  or 
Article  I,  Sec.  20,  of  the  Oregon  Constitution  is  an  inhibition  against 
the  regulation  by  the  legislature  of  the  hours  of  labor  during  which 
women  may  be  employed  in  any  mechanical  or  manufacturing  estab- 
lishment, mercantile  occupation,  or  other  employment  requiring 
continuous  physical  labor,  or  against  the  establishment  of  a  mini- 
mum wage  to  be  paid  therefor.  ...  It  is  conceded  by  all  students 
of  the  subject,  and  they  are  many  and  their  writings  extensive,  that 
woman's  physical  structure  and  her  position  in  the  economy  of  the 
race  renders  her  incapable  of  competing  with  man  either  in  strength 
or  in  endurance.  .  .  . 

In  many  of  the  states  as  well  as  in  foreign  countries  special  study 
and  investigation  have  been  given  to  this  question  as  to  the  effect 
of  long  hours  of  labor  and  inadequate  wages  upon  the  health,  morals 
and  welfare  of  woman,  with  a  view  to  remedy  the  evil  results  as  far 
as  possible.  There  seems  to  be  a  very  strong  and  growing  senti- 
ment throughout  the  land,  and  a  demand,  that  something  must  be 
done  by  law  to  counteract  the  evil  effects  of  these  conditions.  .  .  . 

It  may  now  be  considered  as  established  that  a  statute  which  limits 
the  hours  of  labor  of  certain  occupations  or  for  certain  classes  of 
persons  for  the  protection  of  the  health  and  welfare  of  society  is 
within  the  police  power  of  the  state:  Commonwealth  v.  Riley,  210 
Mass.  387;  ..  .  State  v.  Somerville,  67  Wash.  638.  .  .  . 

We  can  accept  as  settled  law  statutes  having  for  their  purpose 
and  tending  to  that  end  provision  for  a  maximum  hours  law  of 
labor  for  employees  upon  public  works,  a  maximum  hours  law  for 


840  REGULATORY  LABOR  LEGISLATION         [CHAP.  XVII 

women  and  children  emplo3'ed  in  mechanical,  mercantile  or  manu- 
facturing establishments,  a  maximum  hours  law  for  laborers  in  mines 
or  smelters,  a  law  fixing  minimum  wages  for  employees  upon  public 
works.  The  latter  is  held  in  Malette  v.  Spokane,  77  Wash.  205  (137 
Pac.  500),  even  where  the  expense  is  borne  by  private  individuals, 
so  that  the  only  question  for  decision  here  is  as  to  the  power  of 
the  legislature  to  fix  the  minimum  wage  in  such  a  case.  ...  If  the 
statute  tends  reasonably  to  accomplish  the  purposes  intended  by  the 
legislature,  it  should  be  upheld  by  the  court.  Mr.  Justice  Harlan,  in 
Jacobson  v.  Massachusetts,  197  U.  S.  11  .  .  .  quoting  from  Vie- 
meister  v.  White,  179  N.  Y.  235  ..  .  states: 

"A  common  belief,  like  common  knowledge,  does  not  require 
evidence  to  establish  its  existence,  but  may  be  acted  upon  without 
proof  by  the  legislature  and  the  courts.  .  .  .  The  fact  that  the  belief 
is  not  universal  is  not  controlling,  for  there  is  scarcely  any  belief 
that  is  accepted  by  everyone.  The  possibility  that  the  belief  may  be 
wrong,  and  that  science  may  yet  show  it  to  be  wrong,  is  not  con- 
clusive, for  the  legislature  has  the  right  to  pass  laws  which,  according 
to  the  common  belief  of  the  people,  are  adapted  to  prevent  the  spread 
of  contagious  diseases.  In  a  free  country,  where  the  government  is 
by  the  people,  through  their  chosen  representatives,  practical  legis- 
lation admits  of  no  other  standard  of  action,  for  what  the  people 
believe  is  for  the  common  welfare  must  be  accepted  as  tending  to 
promote  the  common  welfare,  whether  it  does  in  fact  or  not.  Any 
other  basis  would  conflict  with  the  spirit  of  the  Constitution,  and 
would  sanction  measures  opposed  to  a  republican  form  of  govern- 
ment." .  .  . 

In  speaking  of  the  Oregon  ten-hour  law,  Mr.  Chief  Justice  Bean, 
in  the  case  of  State  v.  Muller,  48  Or.  252  .  .  .  says: 

"Such  legislation  must  be  taken  as  expressing  the  belief  of  the 
legislature,  and  through  it  of  the  people,  that  the  labor  of  females  in 
such  establishments  in  excess  of  ten  hours  in  any  one  day  is  detri- 
mental to  health,  and  injuriously  affects  the  public  welfare.  The 
only  f}uestion  for  the  court  is  whether  such  a  regulation  or  limitation 
has  any  real  or  substantial  relation  to  the  object  sought  to  be  accom- 
plished, or  whether  it  is  '  so  utterly  unreasonable  and  extravagant ' 
as  to  amount  to  a  mere  arbitrary  interf(M-ence  with  the  right  to  con- 
tract.   On  tills  (luestion  we  are  not  without  authority." 

These  are  some  of  the  grounds  u])()n  which  maxinuim  ten-hour 
laws  are  sustained,  and  we  have  cited  them  here  as  applying  with 
e(}ual  force  to  sustain  the  women's  mininnuu  wage  law,  and  as  bring- 
ing it  within  the  police  power  of  the  legislature.  The  state  should 
be  as  zealous  of  the  morals  of  its  citizens  as  of  their  health.  .  .  . 
"Common  belii'f"  and  "common  knowledge"  are  sufficient  to  make 
it  palpable  and  beyond  doubt  that  the  employment  of  female  labor 
as  it  has  been  conducted  is  highly  detrimental  to  public  morals,  and 


SECT.  V]  MINIMUM   WAGE   LAWS  841 

has  a  strong  tendency  to  corrupt  them.    EHzabeth  Beardsley  Butler, 
in  her  "Women  of  the  Trades,"  says: 

"Yet  the  fact  remains  that,  for  the  vast  bulk  of  salesgirls,  the 
wages  paid  are  not  sufficient  for  self-support,  and,  where  girls  do 
not  have  families  to  fall  back  on,  some  go  undernourished,  some  sell 
themselves.  And  the  store  employment  which  offers  them  this  two- 
horned  dilemma  is  replete  with  opportunities  wliich  in  gradual, 
easy,  attractive  ways  beckon  to  the  second  choice ;  a  situation  which 
a  few  employers  not  only  seem  to  tolerate,  but  to  encourage." 

The  legislature  of  the  State  of  Massachusetts  appointed  a  com- 
mission known  as  the  Commission  on  Minimum  Wage  Boards  to 
investigate  conditions.  In  the  report  of  that  commission  in  January, 
1912,  it  is  said: 

"Women  in  general  are  working  because  of  dire  necessity,  and  in 
most  cases  the  combined  income  of  the  family  is  not  more  than 
adequate  to  meet  the  family's  cost  of  living.  In  these  cases  it  is  not 
optional  with  the  woman  to  decline  low-paid  employment.  Every 
dollar  added  to  the  family  income  is  needed  to  lighten  the  burden 
which  the  rest  are  carrying.  .  .  .  Wherever  the  wages  of  such  a 
woman  are  less  than  the  cost  of  living  and  the  reasonable  provision 
for  maintaining  the  worker  in  health,  the  industry  employing  her 
is  in  receipt  of  the  working  energy  of  a  human  being  at  less  than  its 
cost,  and  to  that  extent  is  parasitic.  The  balance  must  be  made  up 
in  some  way.  It  is  generally  paid  by  the  industry  employing  the 
father.  It  is  sometimes  paid  in  part  by  future  inefficiency  of  the 
worker  herself,  and  by  her  children,  and  perhaps  in  part  ultimately 
by  charity  and  the  state.  ...  If  an  industry  is  permanently  de- 
pendent for  its  existence  on  underpaid  labor,  its  value  to  the  com- 
monwealth is  questionable." 

Many  more  citations  might  be  made  from  the  same  authorities, 
and  from  such  students  of  the  question  as  Miss  Caroline  Gleason,  of 
Portland,  (3regon,  Louise  B.  More,  of  New  York,  Irene  Osgood,  of 
Milwaukee,  and  Robert  C.  Chapin,  of  Beloit  College.  With  this 
common  belief,  of  which  Mr.  Justice  Harlan  says  "we  take  judicial 
notice,"  the  court  cannot  say,  beyond  all  question,  that  the  act  is  a 
plain,  palpable  invasion  of  rights  secured  by  the  fundamental  law, 
and  has  no  real  or  substantial  relation  to  the  protection  of  public 
health,  the  public  morals  or  public  welfare.  Every  argument  put 
forward  to  sustain  the  maximum  hours  law,  or  upon  which  it  was 
established,  applies  equally  in  favor  of  the  constitutionality  of  the 
minimum  wage  law  as  also  within  the  police  power  of  the  state  and 
as  a  regulation  tending  to  guard  the  public  morals  and  the  public 
health.  .  .  . 

We  think  we  should  be  bound  by  the  judgment  of  the  legislature 
that  there  is  a  necessity  for  this  act,  that  it  is  within  the  police  power 
of  the  state  to  provide  for  the  protection  of  the  health,  morals  and 


842  REGULATORY  LABOR  LEGISLATION         [CHAP.  XVII 

welfare  of  women  and  children,  and  that  the  law  should  be  upheld 
as  constitutional. 

The  decree  of  the  Circuit  Court  is  affirmed. 

Affirmed.^ 

Section  6.    Miscellaneous  Laws  for  the  Protection  of  Industrially 
Weaker  Classes  2 

Field,  J.  (dissenting)  in  SLAUGHTER-HOUSE  CASES 

16  Wall.  36,  109  (1873) 

This  equality  of  right,  with  exemption  from  all  disparaging  and 
partial  enactments,  in  the  lawful  pursuits  of  life,  throughout  the 
whole  country,  is  the  distinguishing  privilege  of  citizens  of  the  United 
States.  To  them,  everywhere,  all  pursuits,  all  professions,  all  avoca- 
tions are  open  without  other  restrictions  than  such  as  are  imposed 
equally  upon  all  others  of  the  same  age,  sex,  and  condition.  .  .  . 
This  is  the  fundamental  idea  upon  which  our  institutions  rest,  and 
unless  adhered  to  in  the  legislation  of  the  country  our  Government 
will  be  a  republic  only  in  name.^ 

^  This  decision  was  affirmed  without  opinion  by  the  United  States  Supreme 
Court.     Stettler  v.  O'Hara,  243  U.  S.  629. 

Accord:  State  v.  Crowe,  130  Ark.  272;  Holcombe  v.  Creamer,  231  Mass.  99; 
Williams  v.  Evans,  139  Minn.  32;  Simpson  r.  O'Hara,  70  Ore.  261;  Poye  v.  State, 
89  Tex.  Crim.  Rep.  182;  Larsen  v.  Rice,  100  Wash.  642.  See  also,  Wilson  v.  New, 
243  U.  S.  332,  iiifra,  p.  863. 

For  an  able  discussion  of  the  principles  underlying  the  problem  of  determining 
a  minimum  wage  for  women,  see  W.  Jethro  Brown,  J.,  in  The  Printing  Trades 
Case,  2  South  Australian  Industrial  Rep.  (1918-19)  31,  33-55,  infra,  p.  905. 

Compare  The  Australian  Boot  Trade  Employees'  Fed.  v.  Whybrow  &  Co.,  4 
Com.  Arb.  Rep.  (Australia)  1,  infra,  p.  883. 

^  As  to  the  general  subject  see  Robert  G.  Paterson,  Wage-payment  Legislation 
in  the  United  States,  U.  S.  Bureau  of  Labor  Statistics,  Bulletin  No.  229  (Dec. 
1917). 

^  "The  leading  authority  for  decisions  depending  upon  the  laissez  faire  theory 
was  long  drawn  from  the  Slaughterhouse  Cases,  and  curiously  enough  from 
the  minority  opinion.  .  .  .  The  same  sort  of  argument  11  years  later  found 
its  way  into  a  concurring  opinion  given  by  three  justices  (Butchers'  Union  v. 
Crescent  City  Live  Stock  Landing  it  Slaughterhouse  Co..  Ill  U.  S.  746-766, 
May  5,  1884),  and  thereafter  came  to  be  frequently  relied  on  by  State  courts. 
The  influence  of  such  reasoning  is  shown  in  the  decision  in  the  New  York  Sweat- 
shop Case.  The  law  in  (juestion  had  been  introduced  in  the  legislature  for  unor- 
ganized cigar  makers,  chiefly  foreign  born.  The  legislative  committee  to  which 
it  was  referred  was  relied  ui)on  to  kill  it,  but  after  making  an  investigation  it 
found  the  conditions  of  manufacture  .so  bad  that  it  pushed  the  measure  to  adop- 
tion. In  i)assing  on  the  constitutionality  of  the  measure  the  New  York  court  of 
appeals  declared  that  under  the  law  a  man  '  .  .  .  may  desire  the  advantage  of 
cheap  production  in  consequence  of  his  cheap  rent  and  family  help  and  of  this 
he  is  deprived.  ...  It  (the  law)  arbitrarily  deprives  him  of  liis  property  and  of 
some  portion  of  his  personal  liberty.  ...  In  its  exercise  (of  the  police  power) 
the  legislature  must  respect  the  great  fundamental  rights  guaranteed  by  the 
Constitution.  ...     It    has   never   been   said  .  .  .  that    (its)    preparation    and 


SECT.  VI]  PROTECTIVE   LEGISLATION  843 

COPPAGE  V.  KANSAS 

Supreme  Court  of  the  United  States.     1915 

236  U.  S.  1 

Mr.  Justice  Pitney  delivered  the  opinion  of  the  court. 

In  a  local  court  in  one  of  the  counties  of  Kansas,  plaintiff  in  error 
was  found  guilty  and  adjudged  to  pay  a  fine,  with  imprisonment  as 
the  alternative,  upon  an  information  charging  him  with  a  violation 
of  an  act  of  the  legislature  of  that  State,  approved  March  13,  1903, 
being  Chap.  222  of  the  session  laws  of  that  year,  found  also  as  sees. 
4674  and  4675,  Gen.  Stat.  Kansas  1909.    The  act  reads  as  follows: 

"An  Act  to  provide  a  penalty  for  coercing  or  influencing  or  making 

demands  upon  or  requirements  of  employes,  servants,  laborers, 

and  persons  seeking  employment. 
"5e  it  Enacted,  etc.: 

"Section  1.  That  it  shall  be  unlawful  for  any  individual  or  mem- 
ber of  any  firm,  or  any  agent,  officer  or  employe  of  any  company  or 
corporation,  to  coerce,  require,  demand  or  influence  any  person  or 
persons  to  enter  into  any  agreement,  either  written  or  verbal,  not 
to  join  or  become  or  remain  a  member  of  any  labor  organization  or 
association,  as  a  condition  of  such  person  or  persons  securing  em- 
ployment, or  continuing  in  the  employment  of  such  individual,  firm, 
or  corporation. 

"Sec.  2.  Any  individual  or  member  of  any  firm  or  any  agent, 
officer  or  employe  of  anj^  company  or  corporation  violating  the  pro- 
visions of  this  act  shall  be  deemed  guilty  of  a  misdemeanor,  and 
upon  conviction  thereof  shall  be  fined  in  a  sum  not  less  than  fifty 
dollars  or  imprisoned  in  the  county  jail  not  less  than  thirty  days." 

The  judgment  was  affirmed  by  the  Supreme  Court  of  the  State, 
two  justices  dissenting  (87  Kansas,  752),  and  the  case  is  brought 
here  upon  the  ground  that  the  statute,  as  construed  and  applied  in 

manufacture  into  cigars  were  dangerous  to  the  public  health.  .  .  .  We  certainly 
know  enough  about  it  to  be  sure  that  its  manipulation  in  one  room  can  produce 
no  harm  to  the  health  of  the  occupants  of  other  rooms  in  the  same  house.  .  .  . 
What  possible  relation  can  cigarmaking  in  any  building  have  to  the  health  of  the 
general  public?  .  .  .  Such  legislation  may  invade  one  class  of  rights  today  and 
another  tomorrow.  .  .  .'  {In  re  Application  of  Peter  Jacobs,  98  N.  Y.  104,  105, 
110,  113,  114,  Jan.  20,  1885.) 

"Not  only  did  this  decision  defer  for  15  or  20  years  anything  like  effective  regu- 
lation of  tenement  houses  in  New  York,  but  the  court  by  its  categorical  language 
gave  a  strong  impetus  to  the  restrictive  attitude  encouraged  in  the  State  courts 
by  the  cases  already  cited.  By  1885,  though  public  opinion  had  begun  to  shift 
strongly  in  favor  of  the  regulation  of  the  hours  of  labor,  conditions  of  employ- 
ment, and  wage  payment,  the  courts  had  developed  a  line  of  decisions  which 
could  not  but  be  the  prelude  to  decided  opposition  to  social  control.  The  in- 
dividualism of  a  generation  before  had  just  come  to  its  full  expression  in  the 
law."  —  Robert  G.  Paterson,  Wage-Payment  Legislation  in  the  United  States, 
U.  S.  Bureau  of  Labor  Statistics,  Bulletin  No.  229,  pp.  146-147. 


844  REGULATORY  LABOR  LEGISLATION         [CHAP.  XVII 

this  case,  is  in  conflict  with  that  provision  of  the  Fourteenth  Amend- 
ment of  the  Constitution  of  the  United  States  which  declares  that  no 
State  shall  deprive  any  person  of  liberty  or  property  without  due 
process  of  law. 

The  facts,  as  recited  in  the  opinion  of  the  Supreme  Court,  are  as 
follows:  About  July  1,  1911,  one  Hedges  was  employed  as  a  switch- 
man by  the  St.  Louis  &  San  Francisco  Railway  Co.,  and  was  a  mem- 
ber of  a  labor  organization  called  the  Switchmen's  Union  of  North 
America.  Plaintiff  in  error  was  employed  by  the  railway  company 
as  superintendent,  and  as  such  he  recjuested  Hedges  to  sign  an  agree- 
ment, which  he  presented  to  him  in  writing,  at  the  same  time  inform- 
ing him  that  if  he  did  not  sign  it  he  could  not  remain  in  the  employ 
of  the  company.    The  following  is  a  copy  of  the  paper  thus  presented: 

Fort  Scott,  Kansas, ,  1911. 

Mr.  T.  B.  Coppage,  Superintendent  Frisco  Lines,  Fort  Scott: 

We,  the  undersigned,  have  agreed  to  abide  by  your  request,  that 
is,  to  withdraw  from  the  Switchmen's  Union,  while  in  the  service 
of  the  Frisco  Company. 

(Signed) 

Hedges  refused  to  sign  this,  and  refused  to  withdraw  from  the 
labor  organization.  Thereupon  plaintiff  in  error,  as  such  superin- 
tendent, discharged  him  from  the  service  of  the  company.  .  .  . 

We  have  to  deal  .  .  .  with  a  statute  that,  as  construed  and 
applied,  makes  it  a  criminal  offense  punishable  with  fine  or  im- 
prisonment for  an  employer  or  his  agent  to  merely  prescribe,  as  a 
condition  upon  which  one  may  secure  certain  employment  or  re- 
main in  such  employment  (the  employment  being  terminable  at 
will),  that  the  employe  shall  enter  into  an  agreement  not  to  become 
or  remain  a  member  of  any  labor  organization  while  so  employed; 
the  employe  being  subject  to  no  incapacity  or  disability,  but  on  the 
contrary  free  to  exercise  a  voluntary  choice. 

In  Adair  v.  United  States,  208  U.  S.  161,  this  court  had  to  deal 
with  a  question  not  distinguishable  in  principle  from  the  one  now 
presented.  Congress,  in  sec.  10  of  an  act  of  June  1,  1898,  entitled 
"An  Act  concerning  carriers  engaged  in  interstate  conunercc  and 
their  employes"  (c.  370,  30  Stat.  424,  428),  had  enacted  "That  any 
employer  subject  to  the  provisions  of  this  Act  and  any  officer,  agent, 
or  receiver  of  such  employer  who  shall  require  any  employ^,  or  any 
person  seeking  employment,  as  a  condition  of  such  employment,  to 
enter  into  an  agreement,  either  written  or  verbal,  not  to  become  or 
r(!main  a  member  of  any  labor  corporation,  association,  or  organiza- 
tion; or  shall  threaten  any  employ^  with  loss  of  employment,  or 
shall  unjustly  discriminate  against  any  employ6  because  of  his 
membcrsiiip  in  such  a  labor  corporation,  association,  or  organiza- 
tion ...  is  hereby  declared  to  be  guilty  of  a  misdemeanor,  and, 
upon   conviction   thereof  .  .  .  shall    l)e   i)unished   for  each   offense 


SECT.  VI]  PROTECTIVE   LEGISLATION  845 

by  a  fine  of  not  less  than  one  hundred  dollars  and  not  more  than  one 
thousand  dollars."  Adair  was  convicted  upon  an  indictment  charging 
that  he,  as  agent  of  a  common  carrier  subject  to  the  provisions  of  the 
Act,  unjustly  discriminated  against  a  certain  employe  by  discharg- 
ing him  from  the  employ  of  the  carrier  because  of  his  memVjership 
in  a  labor  organization.  The  court  held  that  portion  of  the  Act  upon 
which  the  conviction  rested  to  be  an  invasion  of  the  personal  liberty 
as  well  as  of  the  right  of  property  guaranteed  by  the  Fifth  Amend- 
ment, which  declares  that  no  person  shall  be  deprived  of  liberty  or 
property  without  due  process  of  law.  .  .  . 

Unless  it  is  to  be  overruled,  this  decision  is  controlling  upon  the 
present  controversy;  for  if  Congress  is  prevented  from  arbitrary 
interference  with  the  liberty  of  contract  because  of  the  "due  process" 
provision  of  the  Fifth  Amendment,  it  is  too  clear  for  argument  that 
the  States  are  prevented  from  the  like  interference  by  virtue  of  the 
corresponding  clause  of  the  Fourteenth  Amendment.  ...  It  fol- 
lows that  this  case  cannot  be  distinguished  from  Adair  v.  United 
States. 

The  decision  in  that  case  was  reached  as  the  result  of  elaborate 
argument  and  full  consideration,  .  .  .  We  are  now  asked,  in  effect, 
to  overrule  it;  and  in  view  of  the  importance  of  the  issue  we  have 
re-examined  the  question  from  the  standpoint  of  both  reason  and 
authority.  As  a  result,  we  are  constrained  to  reaffirm  the  doctrine 
there  applied.  Neither  the  doctrine  nor  this  application  of  it  is  novel; 
we  will  endeavor  to  restate  some  of  the  grounds  upon  which  it  rests. 
The  principle  is  fundamental  and  vital.  Included  in  the  right  of  per- 
sonal liberty  and  the  right  of  private  property  —  partaking  of  the 
nature  of  each  —  is  the  right  to  make  contracts  for  the  acquisition 
of  property.  Chief  among  such  contracts  is  that  of  personal  emploj^- 
ment,  by  which  labor  and  other  services  are  exchanged  for  money  or 
other  forms  of  property.  If  this  right  be  struck  down  or  arbitrarily^ 
interfered  with,  there  is  a  substantial  impairment  of  hberty  in  the 
long-established  constitutional  sense.  The  right  is  as  essential  to  the 
laborer  as  to  the  capitalist,  to  the  poor  as  to  the|  rich ;  for  the  vast 
majority  of  persons  have  no  other  honest  way  to  begin  to  acquire 
property,  save  by  working  for  money. 

An  interference  with  this  liberty  so  serious  as  that  now  under 
consideration,  and  so  disturbing  of  equality  of  right,  must  be  deemed 
to  be  arbitrary,  unless  it  be  supportable  as  a  reasonable  exercise  of 
the  police  power  of  the  State.  But,  notwithstanding  the  strong 
general  presumption  in  favor  of  the  validity  of  state  laws,  we  do  not 
think  the  statute  in  question,  as  construed  and  applied  in  this  case, 
can  be  sustained  as  a  legitimate  exercise  of  that  power.  To  avoid 
possible  misunderstanding,  we  should  here  emphasize  .  .  .  that 
so  far  as  its  title  or  enacting  clause  expresses  a  purpose  to  deal  with 
coercion,  compulsion,  duress,  or  other  undue  influence,  we  have  no 
present  concern  with  it,  because  nothing  of  that  sort  is  involved  in 


846  REGULATORY  LABOR  LEGISLATION         [CHAP.  XVII 

this  case.  ...  In  this  case,  the  Kansas  court  of  last  resort  has  held 
that  Coppage,  the  plaintiff  in  error,  is  a  criminal  punishable  with 
fine  or  imprisonment  under  this  statute  simply  and  merely  because, 
while  acting  as  the  representative  of  the  Railroad  Co.  and  dealing 
with  Hedges,  an  employe  at  will  and  a  man  of  full  age  and  under- 
standing, subject  to  no  restraint  or  disability,  Coppage  insisted  that 
Hedges  should  freely  choose  whether  he  would  leave  the  employ  of 
the  Company  or  would  agree  to  refrain  from  association  with  the 
union  while  so  employed.  This  construction  is,  for  all  purposes  of 
our  jurisdiction,  conclusive  evidence  that  the  State  of  Kansas  intends 
by  this  legislation  to  punish  conduct  such  as  that  of  Coppage,  al- 
though entirely  devoid  of  any  element  of  coercion,  compulsion,  duress, 
or  undue  influence,  just  as  certainly  as  it  intends  to  punish  coercion 
and  the  like.  .  .  . 

Laying  aside,  therefore,  as  immaterial  for  present  purposes,  so 
much  of  the  statute  as  indicates  a  purpose  to  repress  coercive  prac- 
tices, what  possible  relation  has  the  residue  of  the  Act  to  the  public 
health,  safety,  morals  or  general  welfare?  None  is  suggested,  and 
we  are  unable  to  conceive  of  any.  The  Act,  as  the  construction  given 
to  it  by  the  state  court  shows,  is  intended  to  deprive  employers  of 
a  part  of  their  liberty  of  contract,  to  the  corresponding  advantage 
of  the  employed  and  the  upbuilding  of  the  labor  organizations.  But 
no  attempt  is  made,  or  could  reasonably  be  made,  to  sustain  the 
purpose  to  strengthen  these  voluntary  organizations,  any  more  than 
other  voluntary  associations  of  persons,  as  a  legitimate  object  for 
the  exercise  of  the  police  power.  They  are  not  public  institutions, 
charged  by  law  with  public  or  governmental  duties,  such  as  would 
render  the  maintenance  of  their  membership  a  matter  of  direct  con- 
cern to  the  general  welfare.  If  they  were,  a  different  question  would 
be  presented. 

As  to  the  interest  of  the  employed,  it  is  said  by  the  Kansas 
Supreme  Court  (87  Kansas,  p.  759)  to  be  a  matter  of  common  knowl- 
edge that  "employes,  as  a  rule,  are  not  financially  able  to  be  as 
independent  in  making  contracts  for  the  sale  of  their  labor  as  are 
employers  in  making  contracts  of  purchase  thereof."  No  doubt, 
wherever  the  right  of  private  property  exists,  there  must  and  will  be 
inequalities  of  fortune;  and  thus  it  naturally  happens  that  parties 
negotiating  about  a  contract  are  not  equally  unhampered  by  cir- 
cumstances. This  applies  to  all  contracts,  and  not  merely  to  that 
Ijetween  employer  and  employe.  .  .  .  But  the  Fourteenth  Amend- 
ment, in  declaring  that  a  State  shall  not  "deprive  any  person  of 
life,  liberty  or  property  without  due  process  of  law,"  gives  to  each 
of  these  an  equal  sanction;  it  recognizes  "liberty"  and  "property" 
as  co-existent  human  riglits,  and  debars  the  States  from  any  un- 
warranted interference  with  either. 

And  since  a  State  may  not  strike  them  down  directly  it  is  clear 


SECT.  VI]  PROTECTIVE   LEGISLATION  847 

that  it  may  not  do  so  indirectly,  as  by  declaring  in  effect  that  the 
public  good  requires  the  removal  of  those  inequalities  that  are  but  the 
normal  and  inevitable  result  of  their  exercise,  and  then  invoking 
the  police  power  in  order  to  remove  the  inequalities,  without  other 
object  in  view.  The  police  power  is  broad,  and  not  easily  defined, 
but  it  cannot  be  given  the  wide  scope  that  is  here  asserted  for  it, 
without  in  effect  nullifying  the  constitutional  guaranty.  ... 

In  that  portion  of  the  Kansas  statute  which  is  now  under  con- 
sideration —  that  is  to  say,  aside  from  coercion,  etc.  —  there  is  no 
object  or  purpose,  expressed  or  implied,  that  is  claimed  to  have 
reference  to  health,  safety,  morals,  or  public  welfare,  beyond  the 
supposed  desirability  of  leveling  inequalities  of  fortune  by  depriving 
one  who  has  property  of  some  part  of  what  is  characterized  as  his 
"financial  independence."  In  short,  an  interference  with  the  normal 
exercise  of  personal  liberty  and  property  rights  is  the  primary  object 
of  the  statute,  and  not  an  incident  to  the  advancement  of  the  general 
welfare.  .  .  . 

Of  course  we  do  not  intend  to  say,  nor  to  intimate,  anything  in- 
consistent with  the  right  of  individuals  to  join  labor  unions,  nor  do 
we  question  the  legitimacy  of  such  organizations  so  long  as  they  con- 
form to  the  laws  of  the  land  as  others  are  required  to  do.  Conceding 
the  full  right  of  the  individual  to  join  the  union,  he  has  no  inherent 
right  to  do  this  and  still  remain  in  the  employ  of  one  who  is  unwilling 
to  employ  a  union  man,  any  more  than  the  same  individual  has  a 
right  to  join  the  union  without  the  consent  of  that  organization.  Can 
it  be  doubted  that  a  labor  organization  —  a  voluntary  association  of 
working  men  —  has  the  inherent  and  constitutional  right  to  deny 
membership  to  any  man  who  will  not  agree  that  during  such  mem- 
bership he  will  not  accept  or  retain  employment  in  company  with 
non-union  men?  Or  that  a  union  man  has  the  constitutional  right 
to  decline  proffered  employment  unless  the  employer  will  agree  not 
to  employ  any  non-union  man?  .  .  .  And  can  there  be  one  rule  of 
liberty  for  the  labor  organization  and  its  members,  and  a  different 
and  more  restrictive  rule  for  employers?  We  think  not;  and  since 
the  relation  of  employer  and  employe  is  a  voluntary  relation,  as 
clearly  as  is  that  between  the  members  of  a  labor  organization,  the 
employer  has  the  same  inherent  right  to  prescribe  the  terms  upon 
which  he  will  consent  to  the  relationship,  and  to  have  them  fairly 
understood  and  expressed  in  advance. 

When  a  man  is  called  upon  to  agree  not  to  become  or  remain  a 
member  of  the  union  while  working  for  a  particular  employer,  he  is 
in  effect  only  asked  to  deal  openly  and  frankly  with  his  employer, 
so  as  not  to  retain  the  employment  upon  terms  to  which  the  latter 
is  not  willing  to  agree.  And  the  liberty  of  making  contracts  does  not 
include  a  liberty  to  procure  employment  from  an  unwilling  employer, 
or  without  a  fair  understanding.     Nor  may  the  employer  be  fore- 


848  REGULATORY  LABOR  LEGISLATION         [CHAP.  XVII 

closed  by  legislation  from  exercising  the  same  freedom  of  choice 
that  is  the  right  of  the  employe.  ... 

Judgment  reversed,  and  the  cause  remanded  for  further  proceedings 
not  inconMstent  with  this  opinion. 

Mr.  Justice  Holmes,  dissenting. 

I  think  the  judgment  should  be  affirmed.  In  present  conditions 
a  workman  not  unnaturally  may  believe  that  only  by  belonging  to 
a  union  can  he  secure  a  contract  that  shall  be  fair  to  him.  Holden 
V.  Hardy,  169  U.  S.  366,  397.  Chicago,  Burlington  &  Quincy  R.  R. 
V.  McGuire,  219  U.  S.  549,  570.  If  that  belief,  whether  right  or  wrong, 
may  be  held  by  a  reasonable  man,  it  seems  to  me  that  it  may  be 
enforced  by  law  in  order  to  establish  the  equality  of  position  between 
the  parties  in  which  liberty  of  contract  begins.  Whether  in  the 
long  run  it  is  wise  for  the  workingmen  to  enact  legislation  of  this 
sort  is  not  my  concern,  but  I  am  strongly  of  opinion  that  there  is 
nothing  in  the  Constitution  of  the  United  States  to  prevent  it,  and 
that  Adair  v.  United  States,  208  U.  S.  161,  and  Lochner  v.  New 
York,  198  U.  S.  45,  should  be  overruled.  I  have  stated  my  grounds 
in  those  cases  and  think  it  unnecessarj^  to  add  others  that  I  think 
exist.  See  further  Vegelahn  v.  Guntner,  167  Mass.  92,  104,  108. 
Plant  V.  Woods,  176  Mass.  492,  505.  I  still  entertain  the  opinions 
expressed  by  me  in  Massachusetts. 

Mr.  Justice  Day  with  whom  Mr.  Justice  Hughes  concurs, 
dissenting:  .  .  . 

The  act  under  consideration  is  said  to  have  the  effect  to  deprive 
employers  of  a  part  of  their  liberty  of  contract,  for  the  benefit  of 
labor  organizations.  It  is  urged  that  the  statute  has  no  object  or 
purpose,  express  or  implied,  that  has  reference  to  health,  safety, 
morals,  or  public  welfare,  beyond  the  supposed  desirability  of  leveling 
inequalities  of  fortune  by  depriving  him  who  has  property  of  some 
part  of  his  "financial  independence." 

But  this  argument  admits  that  financial  independence  is  not  in- 
dependence of  law  or  of  the  authority  of  the  legislature  to  declare 
the  policy  of  the  State  as  to  matters  which  have  a  reasonable  rela- 
tion to  the  welfare,  peace  and  security  of  the  community. 

This  court  has  many  times  decided  that  the  motives  of  legislators 
in  the  enactment  of  laws  are  not  the  subject  of  judicial  inquiry. 
Legislators,  state  and  Federal,  are  entitled  to  the  presumption  that 
their  action  has  been  in  good  faith  and  because  of  conditions  which 
they  deem  proper  and  sufficient  to  warrant  the  action  taken.  .  .  . 
Soon  Hing  v.  Crowley,  113  U.  S.  703,  710.  "We  must  assume  that 
the  legislature  acts  according  to  its  judgment  for  the  best  interests 
of  the  State.  A  wrong  intent  cannot  be  imputed  to  it."  Florida 
Central,  etc.,  R.  R.  v.  Reynolds,  183  U.  S.  471,  480. 

The  act  must  be  taken  as  an  attempt  of  the  legislature  to  enact 


SECT.  VI]  PROTECTIVE   LEGISLATION  849 

a  statute  which  it  deemed  necessary  to  the  good  order  and  security 
of  society.  .  .  .  The  legislature  may  have  believed,  acting  upon 
conditions  known  to  it,  that  the  public  welfare  would  be  promoted 
by  the  enactment  of  a  statute  which  should  prevent  the  compulsory 
exaction  of  written  agreements  to  forego  the  acknowledged  legal 
right  here  involved,  as  a  condition  of  employment  in  one's  trade  or 
occupation. 

It  would  be  impossible  to  maintain  that  because  one  is  free  to 
accept  or  refuse  a  given  employment,  or  because  one  may  at  will 
employ  or  refuse  to  employ  another,  it  follows  that  the  parties  have 
a  constitutional  right  to  insert  in  an  agreement  of  employment  any 
stipulation  they  choose.  They  cannot  put  in  terms  that  are  against 
public  policy  either  as  it  is  deemed  by  the  courts  to  exist  at  common 
law  or  as  it  may  be  declared  by  the  legislature  as  the  arbiter  within 
the  limits  of  reason  of  the  public  policy  of  the  State.  .  .  . 

Would  anyone  contend  that  the  State  might  not  prohibit  the  im- 
position of  conditions  which  should  require  an  agreement  to  forego 
the  right  on  the  part  of  the  employe  to  resort  to  the  courts  of  the 
country  for  redress  in  the  case  of  disagreement  with  his  employer .'* 
While  the  employe  might  be  discharged  in  case  he  brought  suit 
against  an  employer  if  the  latter  so  willed,  it  by  no  means  follows 
that  he  could  be  required,  as  a  condition  of  employment,  to  forego 
a  right  so  obviously  fundamental  as  the  one  supposed.  It  is  there- 
fore misleading  to  say  that  the  right  of  discharge  necessarily  em- 
braces the  right  to  impose  conditions  of  employment  which  shall 
include  the  surrender  of  rights  which  it  is  the  policy  of  the  State  to 
maintain.  .  .  . 

It  may  be  that  an  employer  may  be  of  the  opinion  that  member- 
ship of  his  employes  in  the  National  Guard,  by  enlistment  in  the 
militia  of  the  State,  may  be  detrimental  to  his  business.  Can  it  be 
successfully  contended  that  the  State  may  not,  in  the  public  interest, 
prohibit  an  agreement  to  forego  such  enlistment  as  against  public 
policy?  Would  it  be  beyond  a  legitimate  exercise  of  the  police  power 
to  provide  that  an  employe  should  not  be  required  to  agree,  as  a 
condition  of  employment,  to  forego  affiliation  with  a  particular 
political  party,  or  the  support  of  a  particular  candidate  for  office.' 
It  seems  to  me  that  these  questions  answer  themselves.  There  is  a 
real  and  not  a  fanciful  distinction  between  the  exercise  of  the.  right 
to  discharge  at  will  and  the  imposition  of  a  requirement  that  the 
employe,  as  a  condition  of  employment,  shall  make  a  particular 
agreement  to  forego  a  legal  right.  The  agreement  may  be,  or  may  be 
declared  to  be,  against  public  policy,  although  the  right  of  discharge 
remains.  .  .  . 

Opinions  may  differ  as  to  the  remedy,  but  we  cannot  understand 
upon  what  ground  it  can  be  said  that  a  subject  so  intimately  re- 
lated to  the  welfare  of  society  is  removed  from  the  legislative  power. 


850  REGULATORY  LABOR  LEGISLATION         [CHAP.  XVII 

Wherein  is  the  right  of  the  employer  to  insert  this  stipulation  in  the 
agreement  any  more  sacred  than  his  right  to  agree  with  another 
employer  in  the  same  trade  to  keep  up  prices?  He  may  think  it 
quite  as  essential  to  his  "financial  independence"  and  so  in  truth 
it  may  be  if  he  alone  is  to  be  considered.  But  it  is  too  late  to  deny 
that  the  legislative  power  reaches  such  a  case.  It  would  be  difficult 
to  select  any  subject  more  intimately  related  to  good  order  and 
the  security  of  the  community  than  that  under  consideration  — 
whether  one  takes  the  view  that  labor  organizations  are  advantageous 
or  the  reverse.  It  is  certainly  as  much  a  matter  for  legislative  con- 
sideration and  action  as  contracts  in  restraint  of  trade.  .  .  . 

It  of  course  is  true,  for  example,  that  a  Church  may  deny  member- 
ship to  those  who  unite  with  other  denominations,  but  it  by  no  means 
follows  that  the  State  may  not  constitutionally  prohibit  a  railroad 
company  from  compelling  a  workingman  to  agree  that  he  will,  or 
will  not,  join  a  particular  church.  An  analogous  case,  —  viewed 
from  the  employer's  standpoint,  would  be:  Can  the  State,  in  the 
exercise  of  its  legislative  power,  reach  concerted  effort  of  employes 
intended  to  coerce  the  employer  as  a  condition  of  hiring  labor  that 
he  shall  engage  in  writing  to  give  up  his  privilege  of  association  with 
other  employers  in  legal  organizations,  corporate  or  otherwise,  having 
for  their  object  a  united  effort  to  promote  by  legal  means  that  which 
employers  believe  to  be  for  the  best  interest  of  their  business  .f* 

I  entirely  agree  that  there  should  be  the  same  rule  for  employers 
and  emploj^ed,  and  the  same  liberty  of  action  for  each.  In  my  judg- 
ment, the  law  may  prohibit  coercive  attempts,  such  as  are  here  in- 
volved, to  deprive  either  of  the  free  right  of  exercising  privileges  which 
are  theirs  within  the  law.  So  far  as  I  know,  no  law  has  undertaken 
to  abridge  the  right  of  employers  of  labor  in  the  exercise  of  free 
choice  as  to  what  organizations  they  will  form  for  the  promotion  of 
their  common  interests,  or  denying  to  them  free  right  of  action  in 
such  matters.  .  ,  . 

I  think  that  the  act  now  under  consideration,  and  kindred  ones, 
are  intended  to  promote  the  same  liberty  of  action  for  the  employd 
as  the  employer  confessedly  enjoys.  The  law  should  be  as  zealous 
to  protect  the  constitutional  liberty  of  the  employe  as  it  is  to  guard 
that  of  the  employer.  A  principal  object  of  this  statute  is  to  protect 
the  liberty  of  the  citizen  to  make  such  lawful  affiliations  as  he  may 
desire  with  organizations  of  his  choice.  It  should  not  be  necessary 
to  the  protection  of  the  liberty  of  one  citizen  tliat  the  same  right  in 
another  citizen  be  abridged  or  destroyed.  .  .  . 

I  therefore  think  that  the  statute  of  Kansas,  sustained  by  the 
Supreme  Court  of  the  State,  did  not  go  beyond  a  legitimate  exercise 
of  the  police  power,  when  it  sought,  not  to  nMjuire  one  man  to  employ 
another  against  his  will,  but  to  put  limitations  ujjon  th(>  sacrifice  of 
rights  which  one  man  may  exact  from  another  as  a  condition  of  em- 


SECT.  VI]  PROTECTIVE   LEGISLATION  851 

ployment.     Entertaining  these  views,  I  am  constrained  to  dissent 
from  the  judgment  in  this  case.^ 


McLEAN  V.  ARKANSAS 

Supreme  Court  of  the  United  States.     1909 

211  U.  S.  539 

The  defendant,  John  McLean,  was  managing  agent  of  the  Bolen- 
Darnall  Coal  Co.,  a  corporation  engaged  in  the  mining  of  coal  and 
employing  more  than  ten  men  underground.  The  defendant  was 
convicted  in  an  Arkansas  court  for  violation  of  a  statute  of  the 
State  of  Arkansas,  entitled  "An  act  to  provide  for  the  weighing  of 
coal  mined  in  the  State  of  Arkansas  as  it  comes  from  the  mine  and 
before  it  is  passed  over  a  screen  of  any  kind."    The  act  provides: 

"Sec.  1.  It  shall  be  unlawful  for  any  mine  owner,  lessee,  or  opera- 
tor of  coal  mines  in  this  State,  where  ten  or  more  men' are  employed 
underground,  employing  miners  at  bushel  or  ton  rates,  or  other 
quantity,  to  pass  the  output  of  coal  mined  by  said  miners  over  any 
screen  or  any  other  device  which  shall  take  any  part  from  the  value 
thereof  before  the  same  shall  have  been  weighed  and  duly  credited 
to  the  employe  sending  the  same  to  the  surface  and  accounted  for 
at  the  legal  rate  of  weights  fixed  by  the  laws  of  Arkansas,  and  no 
employ^  within  the  meaning  of  this  act  shall  be  deemed  to  have 
waived  any  right  accruing  to  him  under  this  section  by  any  contract 
he  may  make  contrary  to  the  provisions  thereof,  and  any  provisions, 
contract,  or  agreement  between  mine  owners,  lessees,  or  operators 
thereof,  and  the  miners  employed  therein,  whereby  the  provisions 
of  this  act  are  waived,  modified  or  annulled  shall  be  void  and  of  no 
effect,  and  the  coal  sent  to  the  surface  shall  be  accepted  or  rejected; 
and  if  accepted,  shall  be  weighed  in  accordance  with  the  provisions 
of  this  act,  and  right  of  action  shall  not  be  invalidated  by  reason  of 
any  contract  or  agreement;  and  any  owner,  agent,  lessee  or  opera- 
tor of  any  coal  mine  in  this  State,  where  ten  or  more  men  are  employed 
underground,  who  shall  knowingly  violate  any  of  the  provisions  of 
this  section  shall  be  deemed  guilty  of  a  misdemeanor,  and  upon  convic- 
tion shall  be  punished  by  a  fine  of  not  less  than  two  hundred  dollars 
nor  more  than  five  hundred  dollars  for  each  offense,  or  by  imprison- 
ment in  the  county  jail  for  a  period  of  not  less  than  sixty  days  nor 
more  than  six  months,  or  both  such  fine  and  imprisonment;  and  each 
day  any  mine  or  mines  are  operated  thereafter  shall  be  a  separate 
and  distinct  offense ;  proceedings  to  be  instituted  in  any  court  having 
competent  jurisdiction."    Acts  1905,  c.  219,  sec.  1. 

1  Accord:  Adair  v.  United  State?,  208  U.  S.  161.  For  a  criticism  of  the  Adair 
case,  see  Hon.  Richard  OIney,  Discrimination  against  Union  Labor  —  Legal?, 
42  Am.  Law  Rev.  161,  164.  The  Coppage  case  is  criticized  in  28  Harv.  L.  Rev. 
497. 


852  REGULATORY  LABOR  LEGISLATION         [CHAP.  XVII 

To  review  the  judgment  of  the  Supreme  Court  of  Arkansas  (81 
Ark.  304),  affirming  the  conviction,  the  plaintiff  in  error  brings  this 
proceeding.  In  an  agreed  statement  of  facts  it  was  admitted  that 
''the  said  John  McLean  did  violate  the  provisions  of  section  1"  of 
the  Arkansas  statute,  "the  only  question  herein  raised  being  the 
validity  of  said  act  of  the  legislature  aforesaid,  under  the  law  and 
facts  herein."  ^ 

Mr.  Justice  Day  delivered  the  opinion  of  the  court.  .  .  . 

The  objections  to  the  judgment  of  the  state  Supreme  Court  of  a 
constitutional  nature  are  twofold:  First,  that  the  statute  is  an  un- 
warranted invasion  of  the  libertj'  of  contract  secured  by  the  Four- 
teenth Amendment  of  the  Constitution  of  the  United  States;  second, 
that  the  law  being  applicable  only  to  mines  where  more  than  ten 
men  are  employed,  is  discriminatory,  and  deprives  the  plaintiff  in 
error  of  the  equal  protection  of  the  laws  within  the  inhibition  of  the 
same  Amendment. 

That  the  Constitution  of  the  United  States,  in  the  Fourteenth 
Amendment  thereof,  protects  the  right  to  make  contracts  for  the 
sale  of  labor,  and  the  right  to  carry  on  trade  or  business  against 
hostile  state  legislation,  has  been  affirmed  in  decisions  of  this  court, 
and  we  have  no  disposition  to  question  those  cases  in  which  the 
right  has  been  upheld  and  maintained  against  such  legislation. 
AUgeyer  v.  Louisiana,  165  U.  S.  578;  Adair  v.  United  States,  208 
U.  S.  161.  But  in  many  cases  in  this  court  the  right  of  freedom  of 
contract  has  been  held  not  to  be  unlimited  in  its  nature,  and  when 
the  right  to  contract  or  carry  on  business  conflicts  with  laws  declar- 
ing the  public  policy  of  the  State,  enacted  for  the  protection  of  the 
public  health,  safety  or  welfare,  the  same  may  be  valid,  notwith- 
standing they  have  the  effect  to  curtail  or  limit  the  freedom  of  con- 
tract. It  would  extend  this  opinion  beyond  reasonable  limits  to 
make  reference  to  all  the  cases  in  this  court  in  which  qualifications 
of  the  right  of  freedom  of  contract  have  been  applied  and  enforced. 
Some  of  them  are  collected  in  Holden  v.  Hard}',  169  U.  S.  366,  in 
which  it  was  held  that  the  hours  of  work  in  mines  might  be  limited. 

In  Knoxville  Iron  Co.  v.  Harbison,  183  U.  S.  13,  it  was  held  that 
an  act  of  the  legislature  of  Tennessee,  re(]uiring  the  redemption  in 
cash  of  store  orders  or  other  evidences  of  indebtedness  issued  by 
employers  in  payment  of  wages  due  to  employes,  did  not  conflict 
with  any  provisions  of  the  Constitution  of  the  United  States  protect- 
ing the  right  of  contract. 

In  I'^risbie  v.  United  States,  157  U.  S.  160,  tlie  act  of  Congress 
prohibiting  attorneys  from  contracting  for  a  larger  fee  than  .SIO.OO 
for  prosecuting  pension  chiinis  was  h(>hl  to  be  a  valid  exercise  of 
police  power. 

In  Soon  Hing  v.  Crowley,  113  U.  S.  703,  a  statute  of  California, 

'  The  statement  of  facts  has  been  framed  upon  the  opinion  of  the  court.  —  Ed. 


SECT.  VI]  PROTECTIVE   LEGISLATION  853 

making  it  unlawful  for  employes  to  work  in  laundries  between  the 
hours  of  10  P.M.  and  6  a.m.,  was  sustained. 

The  statute  fixing  niaxinnim  charges  for  the  storage  of  grain,  and 
prohibiting  contracts  for  larger  amounts,  was  held  valid.  Munn  v. 
People  of  Ilhnois,  94  U.  S.  113. 

In  Patterson  v.  Bark  Eudora,  190  U.  S.  169,  this  court  held  that 
an  act  of  Congress  making  it  a  misdemeanor  for  a  shipmaster  to 
pay  a  sailor  any  part  of  his  wages  in  advance  was  valid.  .  .  . 

In  Jacobson  v.  Massachusetts,  197  U.  S.  11,  this  court  said:. 

"The  liberty  secured  by  the  Constitution  of  the  United  States 
to  every  person  within  its  jurisdiction  does  not  import  absolute 
right  in  each  person  to  be  at  all  times,  and  in  all  circumstances, 
wholly  freed  from  restraint.  There  are  manifold  restraints  to  which 
every  person  is  necessarily  subject  for  the  common  good." 

It  is  then  the  established  doctrine  of  this  court  that  the  liberty 
of  contract  is  not  universal,  and  is  subject  to  restrictions  passed  by 
the  legislative  branch  of  the  Government  in  the  exercise  of  its  power 
to  protect  the  safety,  health  and  welfare  of  the  people. 

It  is  also  true  that  the  police  power  of  the  State  is  not  unlimited, 
and  is  subject  to  judicial  review,  and  when. exerted  in  an  arbitrary 
or  oppressive  manner  such  laws  may  be  annulled  as  violative  of  rights 
protected  by  the  Constitution.  While  the  courts  can  set  aside  legis- 
lative enactments  upon  this  ground,  the  principles  upon  which  such 
interference  is  warranted  are  as  well  settled  as  is  the  right  of  judicial 
interference  itself. 

The  legislature  being  familiar  with  local  conditions  is,  primarily, 
the  judge  of  the  necessity  of  such  enactments.  The  mere  fact  that 
a  court  may  differ  with  the  legislature  in  its  views  of  public  policy, 
or  that  judges  may  hold  views  inconsistent  with  the  propriety  of  the 
legislation  in  question,  affords  no  ground  for  judicial  interference, 
unless  the  act  in  question  is  unmistakably  and  palpably  in  excess  of 
legislative  power.  Jacobson  v.  Massachusetts,  197  U.  S.  11;  Mugler 
V.  Kansas,  123  U.  S.  623;  Minnesota  v.  Barber,  1-36  U.  S.  313,  320; 
Atkin  V.  Kansas,  191  U.  S.  207,  223. 

If  the  law  in  controversy  has  a  reasonable  relation  to  the  protec- 
tion of  the  public  health,  safety  or  welfare  it  is  not  to  be  set  aside 
because  the  judiciary  may  be  of  opinion  that  the  act  will  fail  of  its 
purpose,  or  because  it  is  thought  to  be  an  unwise  exertion  of  the 
authority  vested  in  the  legislative  branch  of  the  Government. 

We  take  it  that  there  is  no  dispute  about  the  fundamental  prop- 
ositions of  law  which  we  have  thus  far  stated;  the  difficulties  and 
differences  of  opinion  arise  in  their  application  to  the  facts  of  a  given 
case.  Is  the  act  in  question  an  arbitrary  interference  with  the  right 
of  contract,  and  is  there  no  reasonable  ground  upon  which  the  legis- 
lature, acting  within  its  conceded  powers,  could  pass  such  a  law? 
Looking  to  the  law  itself,  we  find  its  curtailment  of  the  right  of  free 
contract  to  consist  in  the  requirement  that  the  coal  min(Hi  shall 


854  REGULATORY  LABOR  LEGISLATION         [CHAP.  XVII 

not  be  passed  over  any  screen  where  the  miner  is  employed  at  quan- 
tity rates,  whereby  any  part  of  the  value  thereof  is  taken  from  it 
before  the  same  shall  have  been  weighed  and  credited  to  the  em- 
ploye sending  the  same  to  the  surface,  and  the  coal  is  required  to  be 
accounted  for  according  to  the  legal  rate  of  weights  as  fixed  by  the 
law  of  Arkansas,  and  contracts  contrary  to  this  provision  are  invalid. 
This  law  does  not  prevent  the  operator  from  screening  the  coal  before 
it  is  sent  to  market;  it  does  not  prevent  a  contract  for  mining  coal 
b}^  the  day,  week  or  month;  it  does  not  prevent  the  operator  from 
rejecting  coal  improperly  or  negligently  mined  and  shown  to  be  un- 
duly mingled  with  dirt  or  refuse.  The  objection  upon  the  ground  of 
interference  with  the  right  of  contract  rests  upon  the  inhibition  of 
contracts  which  prevent  the  miner  employed  at  quantity  rates  from 
contracting  for  wages  upon  the  basis  of  screened  coal  instead  of  the 
weight  of  the  coal  as  originally  produced  in  the  mine. 

If  there  existed  a  condition  of  affairs  concerning  which  the  legis- 
lature of  the  State,  exercising  its  conceded  right  to  enact  laws  for 
the  protection  of  the  health,  safety  or  welfare  of  the  people,  might 
pass  the  law,  it  must  be  sustained;  if  such  action  was  arbitrary  in- 
terference with  the  right  to  contract  or  carry  on  business,  and  having 
no  just  relation  to  the  protection  of  the  public  within  the  scope  of 
legislative  power,  the  act  must  fail. 

While  such  laws  have  not  been  uniformly  sustained  when  brought 
before  the  state  courts,  the  legislatures  of  a  number  of  the  States 
have  deemed  them  necessary  in  the  public  interests.  Such  laws 
have  been  passed  in  Illinois,  West  Virginia,  Colorado,  and  perhaps 
in  other  States.  .  .  . 

We  are  not  disposed  to  discuss  these  state  cases.  It  is  enough 
for  our  present  purpose  to  say  that  the  legislative  bodies  of  the 
States  referred  to,  in  the  exercise  of  the  right  of  judgment  conferred 
upon  them,  have  deemed  such  laws  to  be  necessary. 

Conditions  which  may  have  led  to  such  legislation  were  the  sub- 
ject of  very  full  investigation  by  the  industrial  commission  au- 
thorized by  Congress  by  the  act  of  June  18,  1898,  c.  466,  30  Stat.  476. 
Volume  12  of  the  report  of  that  commission  is  devoted  to  the  subject 
of  "  Capital  and  Labor  Employed  in  the  Mining  Industry."  In  that 
investigation,  as  the  report  shows,  many  witnesses  were  called  and 
testified  concerning  the  conditions  of  the  mining  industry  in  this 
country,  and  a  numV)er  of  them  gave  their  views  as  to  the  use  of  screens 
as  a  means  of  determining  the  compensation  to  be  paid  operatives 
in  coal  mines.  Differences  of  opinion  were  developed  in  the  testi- 
mony. Some  witnesses  favored  the  "run  of  the  mine"  systcMU,  by 
which  the  coal  is  weighed  and  paid  for  in  the  form  in  which  it  is 
originally  mined;  others  thought  the  screens  useful  in  the  business, 
promotive  of  skilled  mining,  and  that  they  worked  no  practical 
discrimination  against  the  miner.     A  number  of  the  witnesses  ex- 


SECT.  VI]  PROTECTIVE   LEGISLATION  855 

pressed  opinions,  based  upon  their  experience  in  the  mining  industry, 
that  disputes  concerning  the  intnxkiction  and  use  of  screens  had 
led  to  frequent  and  sometimes  heated  controversies  between  the 
operators  and  the  miners.  This  condition  was  testified  to  have  been 
the  result,  not  only  of  the  introduction  of  screens  as  a  basis  of  pay- 
ing the  miners  for  screened  coal  only,  but  after  the  screens  had  been 
introduced  dilferences  had  arisen  because  of  the  disarrangement  of 
the  parts  of  the  screen,  resulting  in  weakening  it  or  in  increasing  the 
size  of  the  meshes  through  which  the  coal  passed,  thereby  prevent- 
ing a  correct  measurement  of  the  coal  as  the  basis  of  paying  the 
miner's  wages. 

We  are  unable  to  say,  in  the  light  of  the  conditions  shown  in  the 
public  inquiry  referred  to,  and  in  the  necessity  for  such  laws,  evinced 
in  the  enactments  of  the  legislatures  of  various  States,  that  this  law 
had  no  reasonable  relation  to  the  protection  of  a  large  class  of  la- 
borers in  the  receipt  of  their  just  dues  and  the  promotion  of  the  har- 
monious relations  of  capital  and  labor  engaged  in  a  great  industry 
in  the  State.  ... 

Upon  this  branch  of  the  case  it  is  argued  for  the  validity  of  this 
law  that  its  tendency  is  to  require  the  miner  to  be  honestly  paid  for 
the  coal  actually  mined  and  sold.  It  is  insisted  that  the  miner  is 
deprived  of  a  portion  of  his  just  due  when  paid  upon  the  basis  of 
screened  coal,  because  while  the  price  may  be  higher,  and  theoreti- 
cally he  may  be  compensated  for  all  the  coal  mined  in  the  price  paid 
him  for  screened  coal,  that  practically,  owing  to  the  manner  of  the 
operation  of  the  screen  itself,  and  its  different  operation  when  dif- 
ferently adjusted,  or  when  out  of  order,  the  miner  is  deprived  of 
payment  for  the  coal  which  he  has  actually  mined.  It  is  not  denied 
that  the  coal  which  passes  through  the  screen  is  sold  in  the  market. 
It  is  not  for  us  to  say  whether  these  are  actual  conditions.  It  is 
sufficient  to  say  that  it  was  a  situation  brought  to  the  attention  of 
the  legislature,  concerning  which  it  was  entitled  to  judge  and  act 
for  itself  in  the  exercise  of  its  lawful  power  to  pass  remedial  legis- 
lation. 

The  law  is  attacked  upon  the  further  ground  that  it  denies  the 
equal  protection  of  the  law,  in  that  it  is  applicable  only  to  mines 
employing  ten  or  more  men.  ... 

There  is  no  attempt  at  unjust  or  unreasonable  discrimination. 
The  law  is  alike  applicable  to  all  mines  in  the  State  employing  more 
than  ten  men  underground.  It  may  be  presumed  to  practically 
regulate  the  industry  when  conducted  on  any  considerable  scale. 
We  cannot  say  that  there  was  no  reason  for  exempting  from  its  pro- 
visions mines  so  small  as  to  be  in  the  experimental  or  formative  state 
and  affecting  but  few  men,  and  not  requiring  regulation  in  the  in- 
terest of  the  public  health,  safety  or  welfare.  We  cannot  hold,  there- 
fore, that  this  law  is  so  palpably  in  violation  of  the  constitutional 


856  REGULATORY  LABOR  LEGISLATION         [CHAP.  XVII 

rights  involved  as  to  require  us,  in  the  exercise  of  the  right  of  judicial 
review,  to  reverse  the  judgment  of  the  Supreme  Court  of  Arkansas, 
which  has  affirmed  its  validity.     The  judgment  of  that  court  is 

Ajfirmed.^ 

Dissenting:  Mr.  Justice  Brewer  and  Mr.  Justice  Peckham. 

1  In  Frisbie  i'.  United  States,  157  U.  S.  160,  at  p.  165,  Brewer,  J.,  says:  "While 
it  may  be  conceded  that,  generally  speaking,  among  the  inalienable  rights  of  the 
citizens  is  that  of  the  liberty  of  contract,  yet  such  liberty  is  not  absolute  and 
universal.  It  is  within  the  undoubted  power  of  government  to  restrain  some 
individuals  from  all  contracts,  as  well  as  all  individuals  from  some  contracts. 
It  may  deny  to  all  the  right  to  contract  for  the  purchase  or  sale  of  lottery  tickets; 
to  the  minor  the  right  to  assume  any  obligations,  except  for  the  necessaries  of 
existence;  to  the  common  carrier  the  power  to  make  any  contract  releasing  him- 
self from  negligence,  and,  indeed,  may  restrain  all  engaged  in  any  employment 
from  any  contract  in  the  course  of  that  employment  which  is  against  public 
policy.  The  possession  of  this  power  by  government  in  no  manner  conflicts 
with  the  proposition  that,  generally  speaking,  every  citizen  has  a  right  freely  to 
contract  for  the  price  of  his  labor,  services,  or  property." 

In  Opinion  of  the  Justices,  163  Mass.  589,  at  p.  592,  it  is  said:  "There  never 
has  been  at  any  time  in  Massachusetts  an  absolute  right  in  its  inhabitants  to 
make  all  such  contracts  as  they  pleased.  Some  contracts  have  always  been  held 
void  at  common  law,  and  some  contracts  valid  at  common  law  have  been  declared 
void  by  statute.  Married  women  at  common  law  were  under  a  general  disabil- 
ity to  make  contracts  during  coverture;  and,  although  they  have  been  recently 
empowered  by  the  statutes  to  make  contracts  as  if  they  were  unmarried,  still 
at  the  present  time  husband  and  wife  cannot  make  contracts  with  each  other, 
and,  if  the  statutes  were  repealed,  the  powers  of  married  women  to  make  con- 
tracts would  be  governed  by  the  common  law.  Marriage  brokage  and  post  obit 
bonds  and  covenants  in  restraint  of  trade  sometimes  have  been  held  void.  Minors 
at  common  law  are  under  a  disability  to  make  contracts  except  for  necessaries; 
and  this  is  said  to  be  for  their  protection.  Our  statute  of  frauds  prevents  the 
enforcement  in  the  courts  of  many  kinds  of  contracts,  unless  they  are  shown 
by  a  writing,  and  prohibits  the  making  of  certain  contracts;  and  this  statute 
was  passed  for  the  protection  of  persons  against  fraud  and  perjury.  Seamen 
sometimes  have  been  regarded  as  a  class  of  persons  who  could  not  be  trusted  to 
make  their  own  contracts  without  supervision,  and  statutes  have  been  passed 
making  regulations  concerning  their  wages  and  shi[)ping  contracts.  U.  S.  Rev. 
Sts.  4501-4612.  Wages  to  a  certain  amount  due  for  personal  labor  and  services 
have  been  exempted  from  attachment,  probably  on  the  ground  that  it  was  thought 
that  workmen  generally  need  their  wages  for  their  support.  Usury  laws  furnish 
perhaps  the  best  known  illustration  of  the  regulation  by  statute  of  the  price  to 
be  paid  for  the  una  of  a  commodity;  but  the  validity  of  these  laws  usually  has 
been  regarded  as  an  exception  to  a  general  rule.  The  Public  Statutes  of  Massa- 
chu.setts,  Title  12,  entitled  'Of  the  regulation  of  trade  in  certain  cases,'  show 
various  forms  of  interference  by  the  Legislature  with  what  may  be  called  the 
freedom  of  trade  or  of  contracts  concerning  the  .sale  of  commodities.  The 
regulation  of  the  subject  of  fire  insurance,  and  the  prohibition  of  the  sale  of  oleo- 
margarine made  in  imitation  of  yellow  butter,  and  the  requirement  that  an 
agreement  to  make  a  will  must  be  in  writing,  are  some  of  the  most  recent  in- 
stances in  Ma.s.sachu.setts  of  the  i>rohibiti()ii  or  regulation  of  contracts  by  statute. 
The  constitutionality  of  much  of  this  legislation  never  has  been  questioned,  and 
when  questioned,  it  generally  has  been  sustained." 


SECT.  VI]  PROTECTIVE   LEGISLATION  857 

ERIE  RAILROAD  CO.  v.  WILLIAMS 

Supreme  Court  of  the  United  States.     1914 

233  U.  S.  685 

Suit  brought  by  plaintiff  in  error,  the  Erie  Railroad  Co.  (as  it  was 
plaintiff  below  we  shall  so  designate  it)  to  restrain  the  defendant  in 
error,  [the  Commissioner  of  Labor  of  the  State  of  New  York]  (herein 
called  defendant)  from  instituting  actions  to  recover  penalties  for 
non-compliance  with  the  provisions  of  the  Labor  Law  of  the  State 
of  New  York  (Laws  of  1907,  c.  415;  General  Laws,  c.  32)  which  re- 
quired plaintiff  to  pay  its  employes  semi-monthly  and  in  cash. 

The  object  of  the  suit  is  to  test  the  constitutionality  of  the  law.  .  .  . 

Section  9  ^  [of  Article  I  of  the  Labor  Law  of  the  State  of  New 
York]  provides  that  every  railroad  company  and  certain  other  com- 
panies shall  pay  their  employes  in  cash,  and  no  such  company  shall 
pay  its  employes  in  script  commonly  known  as  store  money-orders. 

Section  10  requires  the  payment  of  employes'  wages  semi-monthly. 

Section  11  imposes  a  penalty  of  $50  for  each  failure  to  so  pay.  .  .  . 

The  employes  of  plaintiff  are  distributed  over  more  than  1819 
miles  and  the  making  of  the  payment  of  their  wages  in  money  semi- 
monthly instead  of  monthly  will  impose  upon  and  subject  plaintiff 
to  an  increased  cost  and  expense  of  several  thousand  dollars  each 
month.  .  .  . 

A  stipulation  of  facts  was  entered  into  by  the  parties  upon  which 
the  court  entered  judgment  dismissing  the  complaint.  The  judg- 
ment was  successively  affirmed  by  the  Appellate  Division  of  the 
Supreme  Court  and  by  the  Court  of  Appeals.  .  .  . 

Mr.  Justice  McKenna,  after  stating  the  case  as  above,  delivered 
the  opinion  of  the  court. 

1  "Sec.  9.  Cash  payment  of  wages.  —  Every  manufacturing,  mining,  quarry- 
ing, mercantile,  railroad,  street  railway,  canal,  steamboat,  telegraph  and  tele- 
phone company,  every  express  company,  every  corporation  engaged  in  harvest- 
ing and  storing  ice,  and  every  water  company,  not  municipal,  and  every  person, 
firm  or  corporation,  engaged  in  or  upon  any  public  work  for  the  state  or  any 
municipal  corporation  thereof,  either  as  a  contractor  or  a  sub-contractor  there- 
with, shall  pay  to  each  employe  engaged  in  his,  their  or  its  business  the  wages 
earned  by  such  employe  in  cash.  No  such  company,  person,  firm  or  corporation 
shall  hereafter  pay  such  employes  in  script,  commonly  known  as  store  money- 
orders.     (As  amended  by  c.  443,  Laws  of  1908.) 

"Sec.  10.  When  wages  are  to  be  paid.  —  Every  corporation  or  joint-stock 
association,  or  person  carrying  on  the  business  thereof  by  lease  or  otherwise, 
shall  pay  weekly  to  each  employe  the  wages  earned  by  him  to  a  day  not  more 
than  six  days  prior  to  the  date  of  such  payment.  But  every  person  or  corporation 
operating  a  steam  surface  railroad  shall,  on  or  before  the  first  day  of  each  month, 
pay  the  employes  thereof  the  wages  earned  by  them  during  the  first  half  of  the 
preceding  month  ending  with  the  fifteenth  day  thereof,  and  on  or  before  the 
fifteenth  day  of  each  month  pay  the  employes  thereof  the  wages  earned  by  them 
during  the  last  half  of  the  preceding  calendar  month.  (As  amended  by  c.  442, 
Laws  of  1908.)" 


858  REGULATORY  LABOR  LEGISLATION         [CHAP.  XVII 

The  contention  of  plaintiff  is  that  the  Labor  Law  is  repugnant 
to  the  Fourteenth  Amendment  "in  that  it  deprives  the  company  of 
property,  and  specifically  deprives  the  company,  and  those  of  its 
employes  to  whom  it  applies,  of  liberty  without  due  process  of  law." 
The  contention  may  be  limited  at  the  outset  to  the  rights  of  the 
company.  It  cannot  complain  for  its  employes;  and  before  con- 
sidering the  contention  thus  limited,  it  is  well  to  see  what  meaning 
or  extent  the  Court  of  Appeals  gave  to  the  law. 

The  court  decided  that  the  law  operates  not  only  to  require  the 
railroads  to  pay  their  employes  semi-monthly,  but  prohibits  them 
from  making  contracts  with  their  employes  which  shall  vary  the 
time  of  payment.  ... 

The  [defendant's]  contentions  were  stated  to  be:  (1)  The  legisla- 
tion is  a  proper  exercise  of  the  power  reserved  by  the  constitution 
of  the  State  to  amend  corporate  charters;  (2)  It  constitutes  a  legit- 
imate exercise  of  the  police  power  of  the  State. 

The  court  rejected  both  contentions  of  plaintiff  and  sustained  the 
law  as  an  exercise  of  the  power  over  plaintiff's  charter.' .  .  . 

The  legislation  having  been  passed  in  the  exercise  of  the  reserved 
power  of  the  State,  is  it  valid,  notwithstanding  it  prohibits  both  the 
plaintiff  and  its  employes  from  contracting  against  its  provisions.'' 
Plaintiff  asserts  the  negative  and  attempts  to  sustain  the  assertion 
by  a  very  comprehensive  argument  in  which  a  number  of  decisions 
of  this  court  and  of  other  courts  are  cited  and  reviewed.  They 
illustrate  by  various  instances  the  fundamental  and  indisputable 
principle  that  personal  liberty  includes  the  power  to  make  contracts. 
But  liberty  of  making  contracts  is  subject  to  conditions  in  the  in- 
terest of  the  public  welfare,  and  which  shall  prevail  —  principle  or 
condition  —  cannot  be  defined  by  any  precise  and  universal  formula. 
Each  instance  of  asserted  conflict  must  be  determined  by  itself, 
and  it  has  been  said  many  times  that  each  act  of  legislation  has  the 
support  of  the  presumption  that  it  is  an  exercise  in  the  interest  of 
the  public.  The  burden  is  on  him  who  attacks  the  legislation,  and 
it  is  not  sustained  by  declaring  a  liberty  of  contract.  It  can  only  be 
sustained  by  demonstrating  that  it  conflicts  with  some  constitutional 
restraint  or  that  the  public  welfare  is  not  subserved  by  the  legisla- 
tion. The  legislature  is,  in  the  first  instance^  the  judges  of  what  is 
necessary  for  the  public  weffare,  and  a  judicial  review  of  its  judg- 
ment is  limited.  The  earnest  conflict  of  serious  opinion  does  not 
suffice  to  bring  it  within  the  range  of  judicial  cognizance.  C,  B.  & 
Q.  R.  R.  Co.  V.  McCuire,  219  U.  S.  549,  5(55;  (ierman  Alliance  In- 
surance Co.  V.  Kansas,  233  U.  S.  389.  .  .  . 

It  may  be  admitted  an  advantage  is  taken  away  from  ))laintiff,  or, 
to  put  it  another  way,  a  burden  is  imposed  upon  it.  Is  it  within 
the  power  of  the  State  to  impose  tlie  burden  by  virtue  of  its  reserved 
control  over  plaintiff?  ...  It  would  scmmu  ...  to  be  the  conten- 
tion of    plnirit  iff    tli;it   it    actiuir'cd    by  its    charter  a  vested    right  to 


SECT.  VI]  PROTECTIVE   LEGISLATION  859 

deal  with  its  employes  according  to  its  own  judgment  and,  as  alleged 
in  its  answer,  that  it  was  vested  with  its  powers  as  a  railroad  and  to 
contract  and  be  contracted  with,  for  the  employment  of  persons  to 
conduct  its  operations  and  enterprises  at  and  for  such  wages  and 
upon  such  terms  of  payment  as  might  or  should  be  agreed  on.  .  .  . 
We  may,  in  answering  the  contention,  put  aside  the  rights  of  natural 
persons  and  the  rights  which  might  exist  under  a  constitution  which 
did  not  reserve  control  in  the  State.  The  effect  of  the  control  re- 
served was  to  make  plaintiff,  from  the  moment  of  creation,  subject 
to  the  legislative  power  of  alteration  and,  if  deemed  expedient,  of 
absolute  extinguishment  as  a  corporate  body.  Spring  Valley  Water 
Works  V.  Schottler,  110  U.  S.  347,  352.  And  whether  expedient  or 
not,  is  a  question  for  the  legislature,  not  for  the  courts.  Id.  353. 
In  other  cases  the  effect  of  the  reserved  power  of  amendment  is 
said  to  be  to  make  any  alteration  or  amendment  of  a  charter  subject 
to  it  which  will  not  defeat  or  substantially  impair  the  object  of  the 
grant  or  any  right  vested  under  the  grant.  Lake  Shore,  etc.,  Ry. 
Co.  V.  Smith,  173  U.  S.  684,  697,  698.  Looker  v.  Maynard,  179  U.  S. 
46,  52.  Surely  the  manner  or  time  of  paying  employes  does  not 
come  within  such  limitation.  It  is  a  matter  of  pure  administration, 
not  comparable  in  its  burden  to  those  sustained  in  the  cases  which 
we  have  already  cited.  .  .  . 

The  contention  of  defendant  that  the  legislation  under  review 
might  be  supported  under  the  police  power  of  the  State  has  justifi- 
cation in  cases.  In  Knoxville  Iron  Co.  v.  Harbison,  183  U.  S.  13, 
a  law  of  the  State  of  Tennessee  which  required  all  persons  and 
corporations  to  redeem  in  money  evidences  of  indebtedness  given 
to  their  laborers  or  employes,  in  the  hands  of  their  laborers,  em- 
ployes, or  a  bona  fide  holder,  came  up  for  consideration.  The  Knox- 
ville Coal  Co.  paid  its  employes  in  cash  and  in  coal  orders.  It  made 
money  by  the  practice.  .  .  .  Harbison  purchased  a  number  of  the 
coal  orders  and  demanded  their  payment  in  cash,  which  was  refused. 
He  then  brought  suit  against  the  company,  relying  on  the  statute. 
The  Supreme  Court  gave  him  judgment,  which  was  affirmed  by  this 
court  on  the  ground  that  the  law  was  a  proper  exercise  of  the  police 
power  of  the  State.  This  court,  by  Mr.  Justice  Shiras,  comment- 
ing on  St.  Louis,  Iron  Mt.  &  S.  Ry.  Co.  v.  Paul,  173  U.  S.  404,  said 
that  in  that  case  stress  was  laid  upon  the  reserved  power  of  amend- 
ment which  the  State  had  (p.  22),  "but  it  is  also  true  that,  inasmuch 
as  the  right  of  contract  is  not  absolute  in  respect  to  every  matter,  but 
may  be  subjected  to  the  restraints  demanded  by  the  safety  and  wel- 
fare of  the  State  and  its  inhabitants,  the  police  power  of  the  State 
may,  within  defined  limitations,  extend  over  corporations  outside  of 
and  regardless  of  the  power  to  amend  charters.  Atchison,  Topeka  & 
Santa  Fe  Railroad  v.  Matthews,  174  U.  S.  96."  The  ruling  was  fol- 
lowed in  Dayton  Coal  &  Iron  Co.  v.  Barton  (183  U.  S.  23),  although 
the  Dayton  Co.  was  not  incorporated  under  the  laws  of  Tennessee.  .  .  . 


860  REGULATORY  LABOR  LEGISLATION         [CHAP.  XVII 

It  is,  however,  contended  by  plaintiff  that  the  law  under  review 
cannot  be  sustained  either  as  an  exertion  of  the  police  power  or  as 
an  alteration  of  the  charter  of  plaintiff  unless  the  court  can  say  from 
a  comparison  of  the  systems  of  payment  —  monthly  and  semi- 
monthly —  that  the  former  affects  adversely  the  general  welfare 
or  public  good  and  the  latter  "remedies  that  evil  or  condition  and 
of  itself  does  not  constitute  an  unjust  burden  upon  the  employer." 
But  whether  the  law  imposes  an  unjust  burden  depends  upon  its 
validity,  and  whether  the  public  welfare  is  subserved  by  one  system 
or  the  other  is,  as  we  have  said,  in  the  first  instance,  for  the  legislature 
to  determine,  and  its  judgment  will  not  be  reviewed  unless  "un- 
mistakably and  palpably  in  excess  of  legislative  power."  McLean 
V.  Arkansas,  supra,  211  U.  S.  p.  547.  The  Labor  Law  of  New  York 
cannot  be  so  characterized. 

There  are  certainly  advantages  of  cash  payment  over  deferred 
payments,  and  an  advantage  to  those  who  work  for  a  living  of  a 
ready  purchasing  power  for  their  needs  over  the  use  of  credit.  This 
is  found  as  a  fact  by  the  trial  court,  and  even  if  there  is  no  affirma- 
tive evidence  of  it,  it  is  the  expression  of  experience.  .  .  . 

Judgment  affirmed. 


KEOKEE  COKE  CO.  v.  TAYLOR 

Supreme  Court  of  the  United  States.     1914 
234  U.  S.  224 

Mr.  Justice  Holmes  delivered  the  opinion  of  the  court. 

These  are  actions  of  assumpsit  brought  by  the  defendants  in  error 
upon  orders  signed  by  employes  of  the  plaintiff  in  error  and  ad- 
dressed to  it,  directing  it  to  pay  to  bearer  "in  merchandise  only 
from  your  store,"  to  the  value  specified.  These  orders  were  upon 
scrip  issued  by  the  plaintiff  in  error  as  an  advance  of  monthly  wages 
in  payment  for  labor  performed,  and  the  only  controversy  between 
the  parties  arises  from  the  refusal  of  the  plaintiff  in  error  to  pay  the 
indicated  amounts  in  money.  The  facts  were  agreed,  the  Circuit 
Court  gave  judgment  for  the  plaintiff  and  a  writ  of  error  was  re- 
fused by  the  Supreme  Court  of  Appeals.  The  ground  of  the  judg- 
ment was  an  act  of  February  13,  1888,  c.  118,  amending  and  reenacting 
an  Act  of  1887,  c.  391,  sec.  3,  forbidding  any  person,  firm,  or  cor- 
poration, engaged  in  mining  coal  or  ore,  or  manufacturing  iron  or 
steel  or  any  other  kind  of  manufacturing  to  issue  for  the  payment  of 
labor  any  order  unless  the  same  |)urported  to  be  redeemable  for  its 
face  value  in  lawful  money  of  the  United  States.  The  plaintiff  in 
error  saved  its  rights  under  the  Foiuicentii  Amendment  and  when 
the  Court  of  Appeals  refused  to  hear  the  cases  brought  them  here. 
The  writ  of  error  was  allowed  on  September  25,  1912.  Norfoll^  & 
Suburban  Turnpike  CV).  /•.  Virginia,  225  U.  S.  2()4,  209. 


SECT.  VI]  PROTECTIVE   LEGISLATION  861 

Of  course  we  do  not  go  behind  the  construction  given  to  the  state 
law  by  the  state  courts.  The  objections  that  are  urged  here  are  that 
the  statute  interferes  with  freedom  of  contract,  and,  more  especially, 
that  it  is  class  legislation  of  a  kind  supposed  to  be  inconsistent  with 
the  Fourteenth  Amendment;  a  West  Virginia  decision  upon  a  similar 
statute  being  cited  to  that  effect.  State  v.  Goodwill,  33  W.  Va.  179. 
The  former  of  these  objections,  however,  is  disposed  of  by  Knoxville 
Iron  Co.  V.  Harbison,  183  U.  S.  13,  and  Dayton  Coal  &  Iron  Co.  v. 
Barton,  183  U.  S.  23. 

It  is  more  pressed  that  the  act  discriminates  unconstitutionalh- 
against  certain  classes.  But  while  there  are  differences  of  opinion 
as  to  the  degree  and  kind  of  discrimination  permitted  by  the  Four- 
teenth Amendment,  it  is  established  by  repeated  decisions  that  a 
statute  aimed  at  what  is  deemed  an  evil,  and  hitting  it  presumably 
where  experience  shows  it  to  be  most  felt,  is  not  to  be  upset  by  think- 
ing up  and  enumerating  other  instances  to  which  it  might  have  been 
applied  equally  well,  so  far  as  the  court  can  see.  That  is  for  the 
legislature  to  judge  unless  the  case  is  very  clear.  Lindsley  v.  Natural 
Carbonic  Gas  Co.,  220  U.  S.  61,  81.  Central  Lumber  Co.  v.  South 
Dakota,  226  U.  S.  157,  160.  Patsone  v.  Pennsylvania,  232  U.  S. 
138,  144.  The  suggestion  that  others  besides  mining  and  manu- 
facturing companies  may  keep  shops  and  pay  their  workmen  with 
orders  on  themselves  for  merchandise  is  not  enough  to  overthrow  a 
law  that  must  be  presumed  to  be  deemed  by  the  legislature  coexten- 
sive with  the  practical  need. 

Judgments  affirmed} 

'  In  the  following  cases  laws  passed  for  the  protection  of  an  industrially  weaker 
class  were  upheld  as  constitutional:  St.  Louis,  Iron  Mountain  &  St.  Paul  Ry.  Co. 
V.  Paul,  173  U.  S.  404  (Arkansas  statute  requiring  wages  earned  but  not  due  to 
be  paid  immediately  upon  discharge,  with  or  without  cause,  of  any  servant  or 
employee,  regardless  of  contract  respecting  the  subject);  Knoxville  Iron  Co.  v. 
Harbison,  183  U.  S.  13  (Tennessee  statute  requiring  employers  who  pay  wages  in 
scrip,  store  orders,  or  other  evidence  of  indebtedness  to  redeem  them  in  cash); 
Chicago,  Burlington  &  Quincy  Railroad  v.  McGuire,  219  U.  S.  549  (Iowa  statute 
forbidding  contracts  between  employer  and  employee  limiting  the  right  of  the 
latter  to  recover  damages  at  common  law);  Second  Employers'  Liability  Cases, 
223  U.  S.  1,  49-52;  Phila.,  Bait.  &  Wash.  Railroad  Co.  v.  Schubert,  224  U.  S.  603 
(federal  statute  changing  the  rules  of  the  common  law  as  to  fellow  servants,  as- 
sumption of  risk,  contributory  negligence  and  recovery  for  death  caused  by  neg- 
ligence, and  prohibiting  contracts  to  avoid  the  effect  of  that  change);  Rail  & 
River  Coal  Co.  v.  Ohio  Industrial  Commission,  236  U.  S.  338  (Ohio  statute  pre- 
scribing the  particular  method  of  compensation  to  be  paid  by  employers  to 
miners  for  the  production  of  coal);  Bowersock  v.  Smith,  243  U.  S.  29  (Kansas 
statute  imposing  upon  the  owners  of  manufacturing  establishments  an  absolute 
duty  to  provide  safeguards  for  dangerous  machinery,  and  abolishing  the  common 
law  defenses  of  contributory  negligence  and  assumption  of  risk);  Arizona  Em- 
ployers' Liability  Cases,  250  U.  S.  400,  infra,  p.  954  (Arizona  Employers'  Liabil- 
ity Law). 

Compare  Waterside  Workers'  Fed.  v.  Commonwealth  Steamship  Owners  Assn., 
9  Com.  Arb.  Rep.  (Australia)  293,  infra,  p.  903. 


CHAPTER   XVIII 

EMPLOYIVIENT  IN  A  BUSINESS  CHARGED  WITH 
A  PUBLIC  INTEREST 

Ricks,  J.,  in  TOLEDO,  ANN  ARBOR  &  NORTH  MICHIGAN 
RY.  CO.  V.  PENNSYLVANIA  CO. 

54  Fed.  746,  752-753  (1893) 

They  were  in  the  emploj'  of  the  defendant,  the  Lake  Shore  &  Michi- 
gan Southern  Railroad.  .  .  .  Holding  to  that  employer,  so  engaged 
in  this  great  public  undertaking,  the  relation  they  did,  they  owed  to 
him  and  to  the  public  a  higher  duty  than  though  their  service  had 
been  due  to  a  private  person.  They  entered  its  service  with  full 
knowledge  of  the  exacting  duties  it  owed  to  the  public.  They  knew 
that  if  it  failed  to  comply  with  the  laws  in  any  respect  severe  penalties 
and  losses  would  follow  for  such  neglect.  An  implied  obligation  was 
therefore  assumed  by  the  employees  upon  accepting  service  from  it 
under  such  conditions  that  they  would  perform  their  duties  in  such 
manner  as  to  enable  it  not  only  to  discharge  its  obligations  faithfully, 
but  also  to  protect  it  against  irreparable  losses  and  injuries  and  ex- 
cessive damages  by  any  acts  of  omission  on  their  part.  One  of  these 
implied  conditions  on  their  behalf  was  that  they  would  not  leave 
its  service  or  refuse  to  perform  their  duties  under  circumstances 
when  such  neglect  on  their  part  would  imperil  lives  committed  to 
its  care,  or  the  destruction  of  property  involving  irreparable  loss  and 
injurj%  or  visit  upon  it  severe  penalties.  In  ordinary  conditions  as 
between  employer  and  employee,  the  privilege  of  the  latter  to  quit 
the  former's  service  at  his  option  cannot  be  prevented  by  restraint 
or  force.  The  remedy  for  broach  of  contract  may  follow  to  the  em- 
ployer, but  the  employee  has  it  in  his  power  to  arbitrarily  terminate 
the  relations,  and  abide  the  consequences.  But  these  relative  rights 
and  powers  may  become  quite  different  in  the  case  of  the  employees 
of  a  great  public  corporation,  charged  by  the  law  with  certain  great 
trusts  and  duties  to  the  public.  An  engineer  and  fireman,  who  start 
from  Toledo  with  a  train  of  cars  filled  with  passengers  destined  for 
Cleveland,  Ixjgin  that  journey  under  contract  to  drive  their  engine 
and  draw  the  cars  to  the  destination  agreed  upon.  Will  it  be  claimed 
that  this  engineer  and  fireman  could  (piit  their  employment  when  the 
train  is  part  way  on  its  route,  and  abandon  it  at  some  point  where 
the  lives  of  the  passengers  would  be  imperiled,  and  the  safety  of  the 
property  jeopardized?     The  simple  statement  of  the  proposition  car- 

8«2 


CHAP.  XVIII]  CHARGED  WITH   A   PUBLIC   INTEREST  863 

ries  its  own  condemnation  with  it.  The  very  nature  of  their  service, 
involving  as  it  does  the  custody  of  human  Hfe,  and  the  safety  of  mil- 
Hons  of  property,  imposes  upon  them  obhgations  and  duties  com- 
mensurate with  the  character  of  the  trusts  committed  to  them.^ 


WILSON  V.  NEW 

Supreme  Court  of  the  United  States.     1917 

243  U.  S.  332 

Mr.  Chief  Justice  White  delivered  the  opinion  of  the  court. 

Was  there  power  in  Congress  under  the  circumstances  existing 
to  deal  with  the  hours  of  work  and  wages  of  railroad  employees  en- 
gaged in  interstate  commerce,  is  the  principal  question  here  to  be 
considered.  Its  solution  as  well  as  that  of  other  questions  which  also 
arise  will  be  clarified  by  a  brief  statement  of  the  conditions  out  of 
which  the  controversy  arose. 

Two  systems  controlled  in  March,  1916,  concerning  wages  of 
railroad  employees;  one,  an  eight-hour  standard  of  work  and  wages 
with  additional  pay  for  overtime,  governing  on  about  fifteen  per 
cent  of  the  railroads;  the  other,  a  stated  mileage  task  of  100  miles 
to  be  performed  during  ten  hours  with  extra  pay  for  any  excess,  in 
force  on  about  eighty-five  per  cent  of  the  roads.  The  organizations 
representing  the  employees  of  the  railroads  in  that  month  made  a 
formal  demand  on  the  employers  that  as  to  all  engaged  in  the  move- 
ment of  trains  except  passenger  trains  the  100-mile  task  be  fixed  for 
eight  hours,  provided  that  it  was  not  so  done  as  to  lower  wages  and 
provided  that  an  extra  allowance  for  overtime  calculated  by  the 
minute  at  one  and  one-half  times  the  rate  of  the  regular  hours  serv- 
ice be  established.  The  demand  made  this  standard  obligatory  on 
the  railroads  but  optional  on  the  employees,  as  it  left  the  right  to 
the  employees  to  retain  their  existing  system  on  any  particular  road 
if  they  elected  to  do  so.  .  .  . 

The  employers  refused  the  demand  and  the  employees  through 
their  organizations  by  concert  of  action  took  the  steps  to  call  a 
general  strike  of  all  railroad  employees  throughout  the  whole  country. 

The  President  of  the  United  States  invited  a  conference  between 
the  parties.  He  proposed  arbitration.  The  employers  agreed  to  it 
and  the  employees  rejected  it.  The  President  then  suggested  the 
eight-hour  standard  of  work  and  wages.  The  employers  rejected 
this  and  the  employees  accepted  it.  Before  the  disagreement  was 
resolved   the   representatives  of  the  employees  abruptly   called   a 

1  In  Southern  California  Ry.  Co.  v.  Rutherford,  62  Fed.  796,  at  p.  798,  Ross,  J., 
said:  "Moreover,  the  rights  of  the  pubUc  in  a  case  of  this  sort  should  be  con- 
sidered. '  Railroads,'  said  the  Supreme  Court  in  the  case  of  Joy  v.  St.  Louis,  138 
U.  S.  50,  11  Sup.  Ct.  243,  '  are  common  carriers,  and  owe  duties  to  the  public. 
The  rights  of  the  public  in  respect  to  these  great  highways  of  communication 
should  be  fostered  by  the  courts.'  " 


864  EMPLOYMENT  IN  A  BUSINESS  [CHAP.  XVIII 

general  strike  throughout  the  whole  country  fixed  for  an  early  day. 
The  President,  stating  his  efforts  to  relieve  the  situation  and  pointing 
out  that  no  resources  at  law  were  at  his  disposal  for  compulsory 
arbitration,  to  save  the  commercial  disaster,  the  property  injury  and 
the  personal  suffering  of  all,  not  to  say  starvation,  which  would  be 
brought  to  many  among  the  vast  body  of  the  people  if  the  strike 
was  not  prevented,  asked  Congress,  first,  that  the  eight-hour  stand- 
ard of  work  and  wages  be  fixed  by  law,  and  second,  that  an  official 
body  be  created  to  observe  during  a  reasonable  time  the  operation 
of  the  legislation  and  that  an  explicit  assurance  be  given  that  if  the 
result  of  such  observation  established  such  an  increased  cost  to  the 
employers  as  justified  an  increased  rate,  the  power  would  be  given 
to  the  Interstate  Commerce  Commission  to  authorize  it.  Congress 
responded  by  enacting  the  statute  whose  validity  as  we  have  said 
we  are  called  upon  to  consider.  Act  of  September  3,  5,  1916,  39 
Stat.  721,  c.  436.  The  duty  to  do  so  arises  from  the  fact  that  the 
employers,  unwilling  to  accept  the  act  and  challenging  the  con- 
stitutional power  of  Congress  to  enact  it,  began  this  typical  suit 
against  the  officers  of  certain  labor  unions  and  the  United  States 
District  Attorney  to  enjoin  the  enforcement  of  the  statute.  .  .  . 
Stating  its  desire  to  cooperate  with  the  parties  in  their  purpose  to 
expedite  the  cause,  the  court  below,  briefly  announcing  that  it  was 
of  opinion  that  Congress  had  no  constitutional  power  to  enact  the 
statute,  enjoined  its  enforcement  and  as  the  result  of  the  direct  appeal 
which  followed  we  come,  after  elaborate  oral  and  printed  arguments, 
to  dispose  of  the  controversy. 

All  the  propositions  relied  upon  and  arguments  advanced  ulti- 
mately come  to  two  questions:  First,  the  entire  want  of  constitu- 
tional power  to  deal  with  the  subjects  embraced  by  the  statute,  and 
second,  such  abuse  of  the  power  if  possessed  as  rendered  its  exercise 
unconstitutional.  We  will  consider  these  subjects  under  distinct 
propositions  separately. 

I.  The  entire  want  of  constitutional  power  to  deal  with  the  subjects 
embraced  by  the  statute. 

To  dispose  of  the  contentions  under  this  heading  calls  at  once 
for  a  consideration  of  the  statute  and  we  reproduce  its  title  and  text 
so  far  as  is  material. 

"An  Act  To  establish  an  eight-hour  day  for  employees  of  carriers 
engaged  in  interstate  and  foreign  commerce,  and  for  other  purposes. 

"Be  it  enacted  by  the  Seriate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled,  That  beginning 
January  first,  nineteen  hundred  and  seventeen,  eight  hours  shall, 
in  contracts  for  labor  and  service,  be  deemed  a  day's  work  and  the 
measure  or  standard  of  a  day's  work  for  tiio  pm-pose  of  reckoning  the 
compensation  for  services  of  all  employees  who  are  now  or  may 
hereafter  be  employed  by  any  common  carrier  by  railroad  .  .  . 
which  is  subject  to  the  provisions  of  the  Act  of  Fel)ruary  fourth, 


CHAP,  XVIII]  CHARGED   WITH   A   PUBLIC   INTEREST  865 

eighteen  hundred  and  eighty-seven,  entitled  'An  Act  to  regulate 
commerce '  as  amended,  and  who  are  now  or  may  hereafter  be 
actually  engaged  in  any  capacity  in  the  operation  of  trains  used 
for  the  transportation  of  persons  or  property  on  railroads.  .  .  . 

"Sec.  2.  That  the  President  shall  appoint  a  commission  of  three, 
which  shall  observe  the  operation  and  effects  of  the  institution  of 
the  eight-hour  st£indard  workday  as  above  defined  and  the  facts 
and  conditions  affecting  the  relations  between  such  common  carriers 
and  employees  during  a  period  of  not  less  than  six  months  nor  more 
than  nine  months,  in  the  discretion  of  the  commission,  and  within 
thirty  days  thereafter  such  commission  shall  report  its  findings  to  the 
President  and  Congress;  .  .  . 

"Sec.  3.  That  pending  the  report  of  the  commission  herein  pro- 
vided for  and  for  a  period  of  thirty  days  thereafter  the  compensation 
of  railway  employees  subject  to  this  Act  for  a  ^standard  eight-hour 
workday  shall  not  be  reduced  below  the  present  standard  day's 
wage,  and  for  all  necessary  time  in  excess  of  eight  hours  such  em- 
ployees shall  be  paid  at  a  rate  not  less  than  the  pro  rata  rate  for 
such  standard  eight-hour  workday. 

"Sec.  4.  That  any  person  violating  any  provision  of  this  Act 
shall  be  guilty  of  a  misdemeanor  and  upon  conviction  shall  be  fined 
not  less  than  $100  and  not  more  than  $1000,  or  imprisoned  not  to 
exceed  one  year,  or  both." 

There  must  be  knowledge  of  the  power  exerted  before  determining 
whether  as  exercised  it  was  constitutional  and  we  must  hence  settle 
a  dispute  on  that  question  before  going  further.  Only  an  eight-hour 
standard  for  work  and  wages  was  provided,  is  the  contention  on  the 
one  side,  and  in  substance  only  a  scale  of  wages  was  provided,  is  the 
argument  on  the  other.  We  are  of  the  opinion  that  both  are  right 
and  in  a  sense  both  wrong  in  so  far  as  it  is  assumed  that  the  one 
excludes  the  other.  The  provision  of  section  one  that  "eight  hours 
shall  ...  be  deemed  a  day's  work  and  the  measure  or  standard  of 
a  day's  work,"  leaves  no  doubt  about  the  first  proposition.  As  to 
the  second,  this  is  equally  true  because  of  the  provision  of  section 
three  forbidding  any  lowering  of  wages  as  a  result  of  applying  the 
eight-hour  standard  established  by  section  one  during  the  limited 
period  prescribed  in  section  two.  Both  provisions  are  equally  man- 
datory. If  it  be  said  that  the  second,  the  depriving  of  all  power  to 
change  the  wages  during  the  fixed  period,  is  but  ancillar}^  to  the 
first  command,  the  standard  of  eight  hours,  that  would  not  make 
the  prohibition  as  to  any  change  of  wages  any  the  less  a  fixing  of 
wages.  ...  If  to  deprive  employer  and  employee  of  the  right  to 
contract  for  wages  and  to  provide  that  a  particular  rate  of  wages 
shall  be  paid  for  a  specified  time  is  not  a  fixing  of  wages,  it  is  difficult 
to  see  what  would  be. 

However,  there  is  this  very  broad  difference  between  the  two 
powers  exerted.    The  first,  the  eight-hour  standard,  is  permanently 


866  EMPLOYMENT  IN  A  BUSINESS  [CHAP.  XVIII 

fixed.  The  second,  the  fixing  of  the  wage  standard  resulting  from 
the  prohibition  against  paying  lower  wages,  is  expressly  limited  to 
the  time  specified  in  section  two.  It  is,  therefore,  not  permanent 
but  temporary,  leaving  the  employers  and  employees  free  as  to  the 
subject  of  wages  to  govern  their  relations  by  their  own  agreements 
after  the  specified  time.  Concretely'  stated,  therefore,  the  question 
is  this:  Did  Congress  have  power  under  the  circumstances  stated, 
that  is,  in  dealing  with  the  dispute  between  the  employers  and  em- 
ploj^ees  as  to  wages,  to  provide  a  permanent  eight-hour  standard 
and  to  create  by  legislative  action  a  standard  of  wages  to  be  opera- 
tive upon  the  employers  and  employees  for  such  reasonable  time 
as  it  deemed  necessary  to  afford  an  opportunity  for  the  meeting  of 
the  minds  of  employers  and  employees  on  the  subject  of  wages?  Or, 
in  other  words,  did  it  have  the  power  in  order  to  prevent  the  inter- 
ruption of  interstate  commerce  to  exert  its  will  to  supply  the  absence 
of  a  wage  scale  resulting  from  the  disagreement  as  to  wages  between 
the  employers  and  employees  and  to  make  its  will  on  that  subject 
controlling  for  tha  limited  period  provided  for? 

Coming  to  the  general  considerations  by  which  both  subjects 
must  be  controlled,  to  simplify  the  analysis  for  the  purpose  of  con- 
sidering the  question  of  inherent  power,  we  put  the  question  as  to 
the  eight-hour  standard  entirely  out  of  view  on  the  ground  that  the 
authority  to  permanently  establish  it  is  so  clearly  sustained  as  to 
render  the  subject  not  disputable.^ 

That  common  carriers  by  rail  in  interstate  commerce  are  within 
the  legislative  power  of  Congress  to  regulate  commerce  is  not  sub- 
ject to  dispute.^  It  is  equally  certain  that  where  a  particular  subject 
is  within  such  authority  the  extent  of  regulation  depends  on  the 
nature  and  character  of  the  subject  and  what  is  appropriate  to  its 
regulation.^  The  powers  possessed  by  government  to  deal  with  a 
subject  are  neither  inordinately  enlarged  or  greatly  dwarfed  because 
the  power  to  regulate  interstate  commerce  applies.  This  is  illustrated 
by  the  difference  between  the  much  greater  power  of  regulation  which 
may  be  exerted  as  to  liquor  and  that  which  may  be  exercised  as  to 
flour,  dry-goods  and  other  commodities.  It  is  shown  by  the  settled 
doctrine  sustaining  the  right  by  regulation  absolutely  to  prohibit 
lottery  tickets  and  by  the  obvious  consideration  that  such  right  to 
prohibit  could  not  be  applied  to  pig  iron,  steel  rails,  or  most  of  the 
vast  body  of  commodities. 

What  was  the  extent  of  the  power  thci-efore  of  Congress  to  regu- 
late considering  the  scope  of  regulation  wliich  government  had  the 

'  Baltimore  Sz  Ohio  R.  R.  Co.  v.  Interstate  Coimiierce  Commission,  221  U.  S. 
612;   Mi.ssouri,  Kan.sas  &  Texas  Ry.  Co.  v.  United  States,  231  U.  S.  112. 

«  United  States  v.  Delaware  &  Hudson  Co.,  213  U.  S.  366. 

3  McCulloch  V.  Maryland,  4  Wheat.  316,  421-423;  Interstate  Commerce 
Commission  v.  Brimson,  1.54  U.  S.  447,  472;  Lottery  Case,  188  U.  S.  321;  Clark 
Distilling  Co.  v.  We.stcrn  Maryland  Ry.  Co.,  242  U.  S.  311.  .    .    __ 


CHAP.  XVIII]  CHARGED   WITH   A   PUBLIC  INTEREST  867 

right  to  exert  with  reference  to  interstate  commerce  carriers  when  it 
came  to  exercise  its  legislative  authority  to  regulate  commerce?  is 
the  matter  to  be  decided.  That  the  business  of  common  carriers  by 
rail  is  in  a  sense  a  public  business  because  of  the  interest  of  society 
in  the  continued  operation  and  rightful  conduct  of  such  business 
and  that  the  public  interest  begets  a  public  right  of  regulation  to 
the  full  extent  necessary  to  secure  and  protect  it,  is  settled  by  so 
many  decisions,  state  and  federal,  and  is  illustrated  by  such  a  con- 
tinuous exertion  of  state  and  federal  legislative  power  as  to  leave 
no  room  for  question  on  the  subject.  It  is  also  equally  true  that  as 
the  right  to  fix  by  agreement  between  the  carrier  and  its  employees 
a  standard  of  wages  to  control  their  relations  is  primarily  private, 
the  establishment  and  giving  effect  to  such  agreed  on  standard  is 
not  subject  to  be  controlled  or  prevented  by  public  authority.  But 
taking  all  these  propositions  as  undoubted,  if  the  situation  which  we 
have  described  and  with  which  the  act  of  Congress  dealt  be  taken 
into  view,  that  is,  the  dispute  between  the  employers  and  employees 
as  to  a  standard  of  wages,  their  failure  to  agree,  the  resulting  absence 
of  such  standard,  the  entire  interruption  of  interstate  commerce 
which  was  threatened,  and  the  infinite  injury  to  the  public  interest 
which  was  imminent,  it  would  seem  inevitably  to  result  that  the 
power  to  regulate  necessarily  obtained  and  was  subject  to  be  applied 
to  the  extent  necessary  to  provide  a  remedy  for  the  situation,  which 
included  the  power  to  deal  with  the  dispute,  to  provide  by  appro- 
priate action  for  a  standard  of  wages  to  fill  the  want  of  one  caused 
by  the  failure  to  exert  the  private  right  on  the  subject  and  to  give 
effect  by  appropriate  legislation  to  the  regulations  thus  adopted.  .  .  . 
Nor  is  it  an  answer  to  this  view  to  suggest  that  the  situation  was  one 
of  emergency  and  that  emergency  cannot  be  made  the  source  of 
power.  Ex  parte  Milligan,  4  Wall.  2.  The  proposition  begs  the 
question,  since  although  an  emergency  may  not  call  into  life  a  power 
which  has  never  lived,  nevertheless  emergency  may  afford  a  reason 
for  the  exertion  of  a  living  power  already  enjoyed.  If  acts  which, 
if  done,  would  interrupt,  if  not  destroy,  interstate  commerce  may  be 
by  anticipation  legislatively  prevented,  by  the  same  token  the  power 
to  regulate  may  be  exercised  to  guard  against  the  cessation  of  in- 
terstate commerce  threatened  by  a  failure  of  employers  and  em- 
ployees to  agree  as  to  the  standard  of  wages,  such  standard  being 
an  essential  prerequisite  to  the  uninterrupted  flow  of  interstate 
commerce.  .  .  . 

There  would  seem  to  be  no  ground  for  disputing  the  power  which 
was  exercised  in  the  act  which  is  before  us  so  as  to  prescribe  by  law 
for  the  absence  of  a  standard  of  wages  caused  by  the  failure  to  exer- 
cise the  private  right  as  a  result  of  the  dispute  between  the  parties, 
that  is,  to  exert  the  legislative  will  for  the  purpose  of  settling  the  dis- 
pute and  bind  both  parties  to  the  duty  of  acceptance  and  compliance 
to  the  end  that  no  individual  dispute  or  difference  might  bring  ruin 


868  EMPLOYMENT  IN  A  BUSINESS  [CHAP.  XVIII 

to  the  vast  interests  concerned  in  the  movement  of  interstate  com- 
merce, for  the  express  purpose  of  protecting  and  preserving  which 
the  plenary  legislative  authority  granted  to  Congress  was  reposed. 
This  result  is  further  demonstrated,  as  we  have  suggested,  by  con- 
sidering how  completely  the  purpose  intended  to  be  accomplished  by 
the  regulations  which  have  been  adopted  in  the  past  would  be  ren- 
dered unavailing  or  their  enactment  inexplicable  if  the  power  was 
not  possessed  to  meet  a  situation  like  the  one  with  which  the  statute 
dealt.  What  would  be  the  value  of  the  right  to  a  reasonable  rate  if 
all  movement  in  interstate  commerce  could  be  stopped  as  a  result 
of  a  mere  dispute  between  the  parties  or  their  failure  to  exert  a  pri- 
mary private  right  concerning  a  matter  of  interstate  commerce? 
Again,  what  purpose  would  be  subserved  by  all  the  regulations  estab- 
lished to  secure  the  enjoyment  b}'  the  public  of  an  efficient  and  rea- 
sonable service,  if  there  was  no  power  in  government  to  prevent  all 
service  from  being  destroyed?  .  .  . 

We  are  of  opinion  that  the  reasons  stated  conclusively  establish 
that  from  the  point  of  view  of  inherent  power  the  act  which  is  before 
us  was  clearly  within  the  legislative  power  of  Congress  to  adopt, 
and  that  in  substance  and  effect  it  amounted  to  an  exertion  of  its 
authority  under  the  circumstances  disclosed  to  compulsorily  arbitrate 
the  dispute  between  the  parties  by  establishing  as  to  the  subject 
matter  of  that  dispute  a  legislative  standard  of  wages  operative  and 
binding  as  a  matter  of  law  upon  the  parties,  —  a  power  none  the  less 
efficaciously  exerted  because  exercised  by  direct  legislative  act  in- 
stead of  by  the  enactment  of  other  and  appropriate  means  providing 
for  the  bringing  about  of  such  result.  If  it  be  conceded  that  the 
power  to  enact  the  statute  was  in  effect  the  exercise  of  the  right  to 
fix  wages  whe.e  by  reason  of  the  dispute  there  had  been  a  failure  to 
fix  by  agreement,  it  would  simply  serve  to  show  the  nature  and  char- 
acter of  the  regulation  essential  to  protect  the  public  right  and  safe- 
guard the  movement  of  interstate  commerce,  not  involving  any 
denial  of  the  authority  to  adopt  it. 

And  this  leaves  only  to  be  generally  considered  whether  the  right 
to  exercise  such  a  power  under  the  conditions  which  existed  was 
limited  or  restrained  by  the  private  rights  of  the  carriers  or  their 
employees. 

(a)  As  to  the  carrier.  As  engaging  in  the  business  of  interstate 
commerce  carriage  subjects  the  carrier  to  the  lawful  power  of  Con- 
gress to  regulate  irrespective  of  the  source  whence  the  carrier  draws 
its  existence,  and  as  also  by  engaging  in  a  business  charged  with  a 
public  interest  all  the  vast  property  and  every  right  of  the  carrier 
hccoine  subject  to  the  authority  to  regulate  possessed  by  ('ongress 
to  the  extent  that  regulation  may  be  exerted  considering  the  subject 
regulated  and  what  is  appropriate  and  relevant  thereto,  it  follows 
that  the  very  absence  of  the  scale  of  wages  by  agreement  and  the 
impediment    and    destruction    of    interstate    connnerce    which    was 


CHAP.  XVIII]  CHARGED  WITH  A   PUBLIC  INTEREST  869 

threatened  called  for  the  appropriate  and  relevant  remedy,  the  crea- 
tion of  a  standard  by  operation  of  law  binding  upon  the  carrier. 

(b)  As  to  the  emplo7jee.  Here  again  it  is  obvious  that  what  we  have 
previously  said  is  applicable  and  decisive,  since  whatever  would  be 
the  right  of  an  employee  engaged  in  a  private  business  to  demand 
such  wages  as  he  desires,  to  leave  the  employment  if  he  does  not 
get  them  and  by  concert  of  action  to  agree  with  others  to  leave  upon 
the  same  condition,  such  rights  are  necessarily  subject  to  limitation 
when  employment  is  accepted  in  a  business  charged  with  a  public 
interest  and  as  to  which  the  power  to  regulate  commerce  possessed 
by  Congress  applied  and  the  resulting  right  to  fix  in  case  of  disagree- 
ment and  dispute  a  standard  of  wages  as  we  have  seen  necessarily 
obtained. 

In  other  words,  considering  comprehensively  the  situation  of  the 
employer  and  the  employee  in  the  light  of  the  obligations  arising 
from  the  public  interest  and  of  the  work  in  which  they  are  engaged 
and  the  degree  of  regulation  which  may  be  lawfully  exerted  by  Con- 
gress as  to  that  business,  it  must  follow  that  the  exercise  of  the  law- 
ful governmental  right  is  controlling.  ...  In  saying  this  of  course 
it  is  always  to  be  borne  in  mind  that  as  to  both  carrier  and  employee 
the  beneficent  and  everpresent  safeguards  of  the  Constitution  are 
applicable  and  therefore  both  are  protected  against  confiscation  and 
against  every  act  of  arbitrary  power  which  if  given  effect  to  would 
amount  to  a  denial  of  due  process  or  would  be  repugnant  to  any  other 
constitutional  right.  And  this  emphasizes  that  there  is  no  question 
here  of  purely  private  right  since  the  law  is  concerned  only  with 
those  who  are  engaged  in  a  business  charged  with  a  public  interest 
where  the  subject  dealt  with  as  to  all  the  parties  is  one  involved  in 
that  business  and  which  we  have  seen  comes  under  the  control  of 
the  right  to  regulate  to  the  extent  that  the  power  to  do  so  is  appro- 
priate or  relevant  to  the  business  regulated.^  .  .  . 

Being  of  the  opinion  that  Congress  had  the  power  to  adopt  the 
act  in  question,  whether  it  be  viewed  as  a  direct  fixing  of  wages  to 
meet  the  absence  of  a  standard  on  that  subject  resulting  from  the 
dispute  between  the  parties  or  as  the  exertion  by  Congress  of  the 
power  which  it  undoubtedly  possessed  to  provide  by  appropriate 
legislation  for  compulsory  arbitration  —  a  power  which  inevitably 
resulted  from  its  authority  to  protect  interstate  commerce  in  dealing 
with  a  situation  like  that  which  was  before  it  —  we  conclude  that  the 
court  below  erred  in  holding  the  statute  was  not  within  the  power  of 
Congress  to  enact  and  in  restraining  its  enforcement  and  its  decree 
therefore  must  be  and  it  is  reversed  and  the  cause  remanded  with 
directions  to  dismiss  the  bill. 

And  it  is  so  ordered. 

>  That  part  of  the  opinion  holding  that  the  employers  had  failed  to  show  any 
such  abuse  of  power  on  the  oart  of  Congress  as  rendered  its  exercise  unconstitu- 
tional is  omitted.  —  Ed. 


870  EMPLOYMENT  IN  A  BUSINESS  [CHAP.  XVIII 

Mr.  Justice  McKenna,  concurring.  .  .  . 

To  a  carrier  a  wage  law  is  but  an  item  in  its  accounts,  and 
requiring,  it  may  be,  an  adjustment  of  its  operations,  the  expense  to 
be  recompensed  through  its  rates.  If  it  be  said  that  rates  cannot 
be  changed  at  will  but  only  by  permission  of  authority,  I  cannot 
think  that  permission  will  not  be  given  if  it  be  necessary  to  fulfill 
the  command  of  the  law.  Indeed,  if  not  given,  the  law  might  en- 
counter constitutional  restriction. 

To  an  employee  a  wage  law  may  be  of  more  vital  consequence, 
be  of  the  very  essence  of  his  life,  involving  factors  —  many  and 
various  —  which  he  alone  can  know  and  estimate,  and  which,  be- 
sides, might  not  have  an  enduring  constancy  and  be  submissive  to  a 
precedent  judgment.  There  well  might  be  hesitation  to  displace 
him  and  substitute  the  determination  of  the  law  for  his  action. 

I  speak  only  of  intention;  of  the  power  I  have  no  doubt.  When 
one  enters  into  interstate  commerce  one  enters  into  a  service  in 
which  the  public  has  an  interest  and  subjects  one's  self  to  its  behests. 
And  this  is  no  limitation  of  liberty;  it  is  the  consequence  of  liberty 
exercised,  the  obligation  of  his  undertaking,  and  constrains  no  more 
than  any  contract  constrains.  The  obligation  of  a  contract  is  the 
law  under  which  it  is  made  and  submission  to  regulation  is  the  con- 
dition which  attaches  to  one  who  enters  into  or  accepts  employment 
in  a  business  in  which  the  public  has  an  interest.  .  .  . 

Mr.  Justice  Day,  dissenting.  .  .  . 

There  are  certain  matters  in  the  opinion  of  the  majority  which 
I  am  unable  to  approve  by  silent  acquiescence.  I  am  not  prepared 
to  admit  that  Congress  may  when  deemed  necessary  for  the  public 
interest  coerce  employees  against  their  will  to  continue  in  service  in 
interstate  commerce.  Nor  do  I  think  it  necessary  to  decide,  as 
declared  in  the  majority  opinion,  that  in  matters  of  this  kind  Con- 
gress can  enact  a  compulsory  arbitration  law.  These  questions  are 
not  involved  in  this  case  and  their  decision  need  not  be  anticipated 
until  they  actually  arise. ^  .   .  . 

'  Separate  dissenting  opinions  were  rendered  by  Day,  J.,  by  Pitney,  J.  (in 
which  Van  Devanter,  J.,  concurred),  and  by  Mclleynolds,  J. 

With  Wilson  v.  New  compare  State  v.  Howat,  109  Kan.  376,  infra,  p.  945.  Com- 
pare also  In  re  Debs,  158  U.  S.  564,  supra,  p.  138. 

The  Adamson  law  was  further  discussed  and  the  meaning  and  significance  of 
Wilson  V.  New  considered  in  Fort  Smith  &  Western  R.  R.  Co.  v.  Mills,  253  U.  S. 
206. 

Th(i  controversy  which  gave  rise  to  the  Adamson  law  was  settled  without  refer- 
ence to  the  final  decision  in  Wilson  v.  New.  On  March  19,  1917  before  the  con- 
stitutionality of  the  .\damson  law  had  been  established  by  the  decision  of  Wilson 
V.  New,  handed  down  by  the  Supreme  Court  on  that  very  day,  a  voluntary  settle- 
ment was  finally  reached,  aided  no  doubt  by  the  passage  of  the  Adamson  law, 
by  which  the  cmi)loyees  flefinitively  secured  the  eight-hour  day  which  the  Adam- 
son law  had  temporarily  i)r(}vide(l  for  them. 

As  to  the  .settleiiKint  of  railway  disputes  luidcr  federal  legislation,  .see  C.  O. 
Fisher,  Use  of  Federal  Power  in  Settlement  of  Railway  Labor  Disputes,  U.  S. 
Bureau  of  Labor  Statistics,  Bulletin  No.  303  (1922). 


CHAP.  XVIir]  CHARGED   WITH  A   PUBLIC   INTEREST  871 

ROSENWASSER  BROS.  INC.  v.  PEPPER 
Supreme  Court  of  New  York.     1918 

104  Misc.  457 

ScuDDER,  J.  A  strike  occurred  in  plaintiff's  shoe  factory  on  Sep- 
tember 17,  1917,  which  was  instigated,  aided  and  abetted  by  a  labor 
union  known  as  the  United  Shoe  Workers  of  America.  Plaintiff 
thereupon  brought  an  action  seeking  injunctive  relief  against  certain 
local  and  subordinate  organizations  of  the  union  and  certain  individ- 
uals who  were  officers,  members  or  agents  thereof.  The  strike  was 
accompanied  by  violence,  assaults  and  mass  picketing. 

The  plaintiff  is  entitled  to  a  permanent  injunction  restraining  such 
actions.  If  this  was  all  that  there  was  to  the  case,  no  opinion  would 
be  necessary.  There  are,  however,  matters  involved  in  this  action 
which  transcend  the  usual  rights  of  the  parties,  and  forbid  its  dis- 
position upon  cases  and  authorities  involving  disputes  between  capital 
and  labor  which  arose  before  the  war. 

The  following  facts  differentiate  this  case  from  the  usual  run  of 
ante-bellum  capital-labor  cases. 

The  United  States  is  a  participant  in  this,  the  greatest  war  of  all 
times.  In  the  performance  of  its  part  it  has  been  and  is  sending 
hundreds  of  thousands  of  men  to  Europe,  who  must  be  clothed  and 
equipped.  The  president  has  called  upon  both  manufacturers  and 
workers  to  do  their  utmost  in  the  way  of  supplying  our  forces  with 
clothing  and  equipment. 

Plaintiff's  factory  is  a  large  one,  employing  about  2500  workers. 
Eighty  per  cent  of  its  business  is  with  the  United  States  government 
for  which  it  is  manufacturing  shoes,  leggings,  gas  masks  and  other 
equipment. 

Prior  to  the  strike  in  plaintiff's  factory  about  6000  pairs  of  shoes 
and  15,000  pairs  of  leggings,  besides  other  articles,  were  being  turned 
out  daily  and  shipped  to  government  stations. 

The  result  of  the  dispute  between  the  plaintiff  and  the  union, 
which  has  been  going  on  for  almost  a  year  and  is  still  going  on,  is 
that  the  output  of  the  factory  has  been  reduced  to  about  one-fifth 
of  its  former  production.  .  .  . 

It  seems  established  as  the  law  of  this  state  by  decisions  of  the 
higher  courts  in  cases  which  arose  before  the  war,  that  a  labor  union 
may  induce  or  persuade  the  employees  of  a  manufactory  or  other 
business,  which  is  conducted  by  the  owner  thereof  either  as  an  open 
or  a  non-union  shop,  to  become  members  of  the  union  and  to  strike 
in  order  to  compel  the  owner  to  conduct  his  factory  or  business  as  a 
union  shop. 

It  seems  to  me  that  the  principles  announced  in  cases  which  arose 
before  the  war  cannot  be  applied  to  the  relation  between  workers 
and  employers  in  war  industries  in  so  far  as  they  conflict  with  the 


872  empijOyment  in  a  business         [chap,  xviii 

principles  and  policies  of  the  United  States  government  in  the  con- 
duct of  the  war. 

The  production  of  war  industries  is  so  closely  and  immediately 
connected  with  actual  military  operations  that  it  may  be  said  to  be 
a  part  of  them.  Can  it  then  be  that  with  means  afforded  by  the 
government  to  adjust  differences  between  employers  and  employees 
in  war  industries  a  labor  union  has  the  right,  for  any  cause  whatever, 
to  induce  or  incite  workmen  in  such  industries  to  strike,  or  not  to 
work,  and  thereby  to  jeopardize  the  successful  outcome  of  our  coun- 
try's military  operations,  and  all  that  depends  upon  them,  even  though 
so  to  do  would  have  been  lawful  in  times  of  peace?  An  answer  other 
than  no  is  unthinkable. 

All  the  parties  to  the  present  controversy  —  the  employer,  the 
employees  and  the  labor  union  —  recognized  that  their  respective 
rights  and  relations  to  each  other  were  modified  and  controlled  by 
their  obligations  and  duties  to  the  United  States  government.  Their 
recognition  of  the  principles  and  policies  of  the  United  States  govern- 
ment in  the  matter  of  the  control  of  war  industries  is  shown  by  the 
evidence.  The  contract  entered  into  between  the  plaintiff  and  the 
representatives  of  its  employees  in  October,  1917,  was  the  direct 
result  of  the  mediation  of  the  war  department  and  the  department's 
approval  of  the  contract,  is  shown  by  the  signature  thereto  of  the 
mediator  for  the  department.  This  contract  was  in  accord  with  the 
principles  and  policies  of  the  United  States  for  the  settlement  of 
labor  disputes  in  war  industries.  .  .  . 

From  the  very  outset  of  the  war  it  was  patent  to  all  that  industrial 
peace  was  imperative  if  the  war  was  to  be  prosecuted  successfully, 
wherefore  strikes  and  lockouts  were  and  are  discountenanced,  and 
in  cases  of  dispute  the  employer  is  called  upon  to  bargain  with  the 
workers  collectively,  and,  if  an  agreement  is  not  reached,  the  dispute 
is  settled  by  arbitration  under  the  auspices  of  the  war  department.  .  .  . 

It  is  elementary  that  a  court  of  equity  may  restrain  a  trade  union 
from  inciting  employees  to  violence,  or  the  doing  of  any  tortious 
acts  in  the  conduct  of  a  strike,  or  to  breach  their  contract  of  employ- 
ment. There  is  no  question  but  that  plaintiff  is  entitled  to  an  in- 
junction within  these  rules.  The  question  of  greatest  importance, 
however,  is  whether  under  the  facts  presented  here  the  coiu't  should 
not  go  further  and  enjoin  defendants  from  inciting,  aiding  and  abet- 
ting strikes  of  plaintiff's  em|)l()yecs  for  any  cause,  in  view  of  the 
fact  that  the  parties  to  this  controversy  have  devised  and  have  set 
in  motion  appropriate  machinery  to  settle  by  arbitration  all  dif^ 
ferences  existing  between  them,  and  because  the  life  of  our  nation 
is  dependent  upon  an  uninterrupted  production  of  tliose  things 
needed  to  successfully  carry  <»n  the  war  in  wliich  our  country  is 
engaged. 

It  seems  to  nic  that  an  injunction  sliould  be  granted  on  these 
grounds. 


CHAP.  XVIII]  CHARGED  WITH   A   PUBLIC   INTEREST  873 

The  usual  reciprocal  rights  and  obhgations  of  employer  and  em- 
ployee are  modified  in  these  times  by  their  respective  duty  to  the 
United  States  government.  Duty  to  the  government  was  in  con- 
templation of  the  parties  in  entering  into  the  contract  of  employ- 
ment, and  they  dealt  with  each  other  with  reference  to  that  duty. 
The  prosecution  of  the  war  by  the  United  States  government  re- 
quires the  maxinmm  production  of  military  equipment  in  the  shortest 
time.  To  that  end  it  only  asks  organized  labor  to  forego  the  enforce- 
ment of  its  purposes  by  strikes  or  curtailment  of  production  in  war 
industries.  The  government  does  not  oppose  the  organization  of 
labor  or  the  formation  of  trades  unions,  but  favors  them.  It  has 
announced  that  this  right  shall  not  be  denied,  abridged  or  interfered 
with  by  employers  in  any  manner  whatsoever.  It  has  not  only 
recognized  this  right,  but  has  used  its  power  and  influence  to  compel 
employers  to  recognize  it. 

In  this  case  the  employer  has  recognized  the  right  of  its  employees 
to  collective  bargaining  by  their  chosen  representatives;  it  has 
granted  them  the  shorter  hours  which  they  demanded;  it  has  agreed 
to  arbitrate  the  question  of  wages.  The  wages  which  plaintiff  is 
paying  pending  the  determination  of  the  arbitrators  is  at  least  a 
living  wage  and  as  high,  if  not  higher,  than  is  paid  in  other  factories. 
Nevertheless,  in  view  of  the  great  increase  in  the  cost  of  living, 
it  seems  probable  that  wages  should  be  further  raised;  this  is  a 
question  to  be  determined  by  the  arbitrators.  The  plaintiff's  fac- 
tory is  a  modern  building,  and  the  evidence  fails  to  show  any  good 
ground  of  complaint  as  to  its  hygienic  conditions;  in  fact  no  such 
claim  is  made.  The  evidence  shows  no  legitimate  reason,  or  justifica- 
tion in  the  circumstances  for  a  strike.  For  defendants  to  incite  the 
employees  to  strike  merely  for  the  purpose  of  promoting  the  private 
organization  interests  of  the  union  is,  under  the  circumstances, 
wicked. 

The  theory  of  the  action  is  that  the  defendant  local  organization 
of  the  union  and  the  individual  defendants,  together  with  others 
who  have  not  been  made  parties  defendant,  have  conspired  and  con- 
tinued to  conspire  to  coerce  plaintiff  to  recognize  the  union  and  to 
conduct  its  factory  as  a  union  shop  by  inciting  a  large  number  of 
plaintiff's  employees  and  others  to  commit  certain  illegal  and  wrong- 
ful acts  which  have  caused  and  will  cause  irreparable  injury  to  plain- 
tiff's business,  four-fifths  of  which  is  war  work  for  the  United  States 
government. 

At  the  trial  plaintiff  limited  its  claim  for  relief  to  an  injunction 
only,  and  it  does  not  seek  to  recover  damages. 

An  injunction  should  be  granted  substantially  as  follows: 

(1)  The  repetition  of  acts  of  violence  which  occurred  during  the 
strike  in  September,  1917,  to  be  enjoined; 

(2)  The  continuance  of  factory  disorders  which  have  been  going 
on  from  October  fifth,  to  the  end  of  the  trial,  to  be  enjoined; 


874  CHARGED   WITH   A    PUBLIC    INTEREST  [CHAP.  XVIII 

(3)  Strikes  for  any  cause  whatever  to  be  enjoined  for  the  duration 
of  the  war. 

The  injunction,  however,  to  provide  that  defendants  may  lawfully 
persuade  plaintiff's  employees  to  join  the  union,  may  demand  of 
plaintiff  anything  they  deem  of  advantage  to  the  employees  or  the 
union,  and  may  seek  the  attainment  of  their  demands  by  application 
to  the  United  States  govermnent,  or  the  government  of  the  state  of 
New  York. 

Decision  signed,  settle  judgment  on  notice  in  accordance  there- 
with. 

Judgment  accordingly.^ 

'  The  decision  of  this  case  was  adversely  criticized  in  32  H.  L.  R.  837.  Com- 
pare Wagner  Electric  Mfg.  Co.  v.  District  Lodge  No.  9,  252  Fed.  597;  West 
Virginia  Traction  &  Electric  Co.  v.  Elm  Grove  Mining  Co.,  253  Fed.  772;  Lamar 
V.  United  States,  260  Fed.  561.  In  the  latter  case  it  was  said  (p.  563):  "But  we 
do  hold  that  where  it  is  charged  (as  here)  that  the  intent  was  solely  to  restrain 
foreign  trade,  and  where  it  is  proved  (as  here)  that  the  proposed  instigation  of 
strikes  bore  no  relation  whatever  to  the  welfare  of  the  strikers,  then  at  most  and 
best  the  strike  becomes  nothing  more  than  an  instalment  or  means,  legal  in  it- 
self, but  used  only  for  an  illegal  end." 


Ok 


CHAPTER   XIX 

COMPULSORY   ARBITRATION    AND    THE 
INDUSTRIAL  COURT  ^ 

Section  1.     Industrial  Disputes  Investigation  Act  of  Canada 

INDUSTRIAL  DISPUTES  INVESTIGATION  ACT,  1907^ 

6  &  7  Edw.  VII,  c.  20  {Dom.)  (1907) 

Preliminary 

Interpretation 

Section  2.   In  this  Act,  unless  the  context  otherwise  requires  — 

(a)  "Minister"  means  the  Minister  of  Labor. 

{h)   "Department"  means  the  Department  of  Labor. 

(c)  "Employer"  means  any  person,  company  or  corporation  emplojang 
10  or  more  persons  and  owning  or  operating  any  mining  property,  agency 
of  transportation  or  communication,  or  public  service  utility,  including, 
except  as  hereinafter  pro\ided,  railways,  whether  operated  by  steam,  electric- 
ity or  other  motive  power,  steamships,  telegraphs  and  telephone  lines,  gas, 
electric  light,  water  and  power  works.  .  .  . 

>  The  literature  upon  this  subject  is  so  voluminous  that  only  a  few  leading 
references  are  here  given : 

Canadian  Industrial  Disputes  Investigation  Act:  Benjamin  M.  Squires,  Opera- 
tion of  the  Industrial  Disputes  Investigation  Act  of  Canada,  U.  S.  Bureau  of 
Labor  Statistics,  Bulletin  No.  233  (bibliography  on  pp.  149-150);  Riddell,  Labor 
Legislation  in  Canada,  5  Minn.  L.  Rev.  83. 

Australian  Court  of  Conciliation  and  Arbitration:  Henry  B.  Higgins  (President 
of  the  Court),  A  New  Province  for  Law  and  Order,  29  H.  L.  R.  13;  32  lb.  189; 
34  lb.  105;  W.  Jethro  Brown,  Law,  Industry,  and  Post- War  Adjustments,  35 
H.  L.  R.  223. 

Industrial  Court  of  South  Australia:  W.  Jethro  Brown,  The  Judicial  Regula- 
tion of  Industrial  Conditions,  27  Yale  Law  Jour.  427  (l)il)liography  on  pp.  446- 
447);  W.  Jethro  Brown,  Effect  of  an  Increase  in  the  Living  Wage,  32  H.  L.  R. 
892;  W.  Jethro  Brown,  Latest  Phase  in  Legal  Evolution,  13  111.  L.  Rev.  160. 

Kansas  Court  of  Industrial  Relations:  Governor  Henry  J.  Allen,  The  Party 
of  the  Third  Part;  William  R.  Vance,  The  Kansas  Court  of  Industrial  Relations, 
30  Yale  Law  Jour.  456;  J.  S.  Young,  Industrial  Courts,  4  Minn.  L.  Rev.  483; 
5  lb.  39.  For  a  brief  descriptive  article  outlining  the  social  background  of  the 
Kansas  Court  of  Industrial  Relations,  see  Herbert  Feis,  Kansas  Miners  and  the 
Kansas  Court,  The  Survey  Graphic,  vol.  1,  No.  5  (March,  1922),  p.  822. 

Upon  the  general  subject,  see  Commons  and  Andrews,  Principles  of  Labor 
Legislation  (1920  ed.),  pp.  149-174. 

Compare  the  English  Combination  Act,  1800  (39  and  40  Geo.  Ill,  c.  106),  sees. 
18-32. 

^  The  Canadian  Industrial  Disputes  Act,  although  strictly  not  a  law  enforcing 
compulsory  arbitration,  is  nevertheless  included  in  this  chapter  for  the  sake  of 
comparison. 

875 


876  COMPULSORY  ARBITRATION  [CHAP.  XIX 

(g)  "Strike  "  or  "  to  go  on  strike  "  (without  limiting  the  nature  of  its  mean- 
ing) means  the  cessation  of  work  by  a  body  of  employees  acting  in  combina- 
tion, or  a  concerted  refusal  or  a  refusal  under  a  common  understanding  of 
any  number  of  employees  to  continue  to  w  ork  for  an  employer,  in  consequence 
of  a  dispute,  done  as  a  means  of  compelling  their  employer,  or  to  aid  other 
employees  in  compelling  their  employer,  to  accept  terms  of  emplojTnent.  .  .  . 

Boards  of  Conxiliation  and  Ixaestigation 
Constitution  of  Boards 

Section  o.  Whenever  any  dispute  exists  between  an  emploj^er  and  any 
of  his  employees,  and  the  parties  thereto  are  unable  to  adjust  it,  either  of 
the  parties  to  the  dispute  may  make  application  to  the  Minister  for  the  ap- 
pointment of  a  Board  of  Conciliation  and  Investigation,  to  which  Board  the 
dispute  may  be  referred  under  the  provisions  of  this  Act:  Provided,  however, 
that,  in  the  case  of  a  dispute  between  a  railway  company  and  its  employees, 
such  dispute  may  be  referred,  for  the  purpose  of  conciliation  and  investiga- 
tion, under  the  provisions  concerning  railway  disputes  in  the  Conciliation 
and  Labor  Act.  .  .  . 

Section  7.  Every  Board  shall  consist  of  three  members  who  shall  be  ap- 
pointed by  the  Minister. 

2.  Of  the  three  members  of  the  Board  one  shall  be  appointed  on  the  recom- 
mendation of  the  employer  and  one  on  the  recommendation  of  the  employees 
(the  parties  to  the  dispute),  and  the  third  on  the  recommendation  of  the 
members  so  chosen.  ... 

Functions,  Poxoers,  and  Procedure  of  Boards 

Section  21.  Anj^  dispute  may  be  referred  to  a  Board  b.y  application  in 
that  behalf  made  in  due  form  by  any  party  thereto;  provided  that  no  dis- 
pute shall  be  the  subject  of  reference  to  a  Board  under  this  Act  in  any  case 
in  which  the  employees  affected  by  the  dispute  are  fewer  than  10.  .  .  . 

Section  23.  In  every  case  where  a  dispute  is  duly  referred  to  a  Board  it 
shall  be  the  duty  of  the  Board  to  endeavor  to  bring  about  a  settlement  of  the 
dispute,  and  to  this  end  the  Board  shall,  in  such  manner  as  it  thinks  fit, 
expeditiously  and  carefully  inquire  into  the  dispute  and  all  matters  affect- 
ing the  merits  thereof  and  the  right  .'settlement  thereof.  In  the  course  of 
such  in(|uiry  the  Board  may  make  all  such  suggestions  and  do  all  such  things 
as  it  deems  right  and  projier  for  inducing  tlie  parties  to  come  to  a  fair  and 
amicable  .settlement  of  the  dispute,  and  may  adjourn  the  proceedings  for 
any  period  the  Board  thinks  reasonable  to  allow  the  parties  to  agree  upon 
terms  of  settlement. 

Section  24.  If  a  .settlement  of  the  dispute  is  arrived  at  by  the  parties 
during  the  course  of  its  reference  to  the  Board,  a  memorandum  of  the  settle- 
ment shall  be  drawn  up  by  the  Board  and  signed  by  the  parties,  and  shall, 
if  the  parties  so  agree,  Ije  binding  as  if  made  a  recommendation  by  the  Board 
under  sec.  (12  of  this  Act,  and  a  copy  tliereof  with  a  report  upon  the  pro- 
ceedings shall  be  forwarded  to  the  Minister. 

Section  25.  If  a  settlement  of  the  dispute  is  not  arrived  at  during  the 
cour.«e  of  its  reference  to  the  Board,  the  Board  shall  make  a  full  report 
thereon  to  the  Minister,  which  report  shall  .set  forth  the  various  proceed- 
ings and  steps  taken  by  the  Board  for  the  purpose  of  fully  and  carefully 


^ 


SECT.  I]  CANADIAN  INDUSTRIAL  DISPUTES   ACT  877 

ascertaining  all  the  facts  and  circuiriKtances,  and  shall  also  set  forth  such 
facts  and  circumstances,  and  its  findings  therefrom,  including  the  cause  of 
the  dispute  and  the  Board's  recommendation  for  the  settlement  of  the  dis- 
pute according  to  the  merits  and  substantial  justice  of  the  case. 

Section  26.  The  Board's  recommendation  shall  deal  with  each  item  of 
the  dispute  and  shall  state  in  plain  terms,  and  avoiding  as  far  as  possible 
all  technicalities,  what  in  the  Board's  opinion  ought  or  ought  not  to  be  done 
by  the  respective  parties  concerned.  Wherever  it  appears  to  the  Board 
expedient  so  to  do,  its  recommendation  shall  also  state  the  period  during 
which  the  proposed  settlement  should  continue  in  force,  and  the  date  from 
which  it  should  commence.  .  .  . 

Section  28.  Upon  receipt  of  the  Board's  report  the  Minister  shall  forth- 
with cause  the  report  to  be  filed  in  the  office  of  the  Registrar  and  a  copy  thereof 
to  be  sent  free  of  charge  to  the  parties  to  the  dispute,  and  to  the  representa- 
tive of  any  newspaper  published  in  Canada  who  applies  therefor,  and  the 
Minister  may  distribute  copies  of  the  report,  and  of  any  minority  report,  in 
such  manner  as  to  him  seems  most  desirable  as  a  means  of  securing  a  com- 
pliance with  the  Board's  recommendation.  The  Registrar  shall,  upon  ap- 
plication, supply  certified  copies  for  a  prescribed  fee,  to  persons  other  than 
those  mentioned  in  this  section. 

Section  29.  For  the  information  of  Parliament  and  the  public,  the  re- 
port and  recommendation  of  the  Board,  and  any  minority  report,  shall, 
without  delay,  be  published  in  the  Labour  Gazette,  and  be  included  in  the 
annual  report  of  the  Department  of  Labor  to  the  Governor  General. 

Section  30.  For  the  purpose  of  its  inquiry  the  Board  shall  have  all  the 
powers  of  summoning  before  it,  and  enforcing  the  attendance  of  witnesses, 
of  administering  oaths,  and  of  requiring  witnesses  to  give  evidence  on  oath 
or  on  solemn  affirmation  (if  thej^  are  persons  entitled  to  affirm  in  civil  mat- 
ters) and  to  produce  such  books,  papers,  or  other  documents  or  things  as 
the  Board  deems  requisite  to  the  full  investigation  of  the  matters  into  which 
it  is  inquiring,  as  is  vested  in  any  court  of  record  in  civil  cases. 

2.  Any  member  of  the  Board  may  administer  an  oath,  and  the  Board  may 
accept,  admit,  and  call  for  such  evidence  as  in  equity  and  good  conscience 
it  thinks  fit,  whether  strictly  legal  evidence  or  not.  .  .  . 

Section  45.  The  proceedings  of  the  Board  shall  be  conducted  in  public; 
provided  that  at  any  such  proceedings  before  it,  the  Board,  on  its  own  motion, 
or  on  the  application  of  any  of  the  parties,  may  direct  that  the  proceedings 
shall  be  conducted  in  private  and  that  all  persons  other  than  the  parties, 
their  representatives,  the  officers  of  the  Board,  and  the  witnesses  under 
examination  shall  withdraw. 

Section  46.  The  decision  of  a  majority  of  the  members  present  at  a  sit- 
ting of  the  Board  shall  be  the  decision  of  the  Board,  and  the  findings  and 
recommendations  of  the  majority'  of  its  members  shall  be  those  of  the 
Board.  .  .  . 

Strikes  and  Lockouts  Prior  to  and  Pending  a  Reference 
to  a  Board  Illegal 

Section  56.  It  shall  be  unlawful  for  any  employer  to  declare  or  cause  a 
lockout,  or  for  any  employee  to  go  on  strike,  on  account  of  any  dispute  prior 
to  or  during  a  reference  of  such  dispute  to  a  Board  of  Conciliation  and  In- 
vestigation under  the  provisions  of  this  Act,  or  prior  to  or  during  a  reference 


878  COMPULSORY  ARBITRATION  [CHAP.  XIX 

under  the  provisions  concerning  railway  disputes  in  the  Conciliation  and 
Labor  Act :  Provided  that  nothing  in  this  Act  shall  prohibit  the  suspension 
or  discontinuance  of  any  industry  or  of  the  working  of  any  person  therein 
for  any  cause  not  constituting  a  lockout  or  strike:  Provided  also  that, 
except  where  the  parties  have  entered  into  an  agreement  under  sec.  62  of 
this  Act,  nothing  in  this  Act  shall  be  held  to  restrain  any  emploj-er  from  de- 
claring a  lockout,  or  any  employee  from  going  on  strike  in  respect  of  any 
dispute  which  has  been  duly  referred  to  a  Board  and  w4iich  has  been  dealt 
with  under  sees.  24  or  25  of  this  Act,  or  in  respect  of  any  dispute  which 
has  been  the  subject  of  a  reference  under  the  provisions  concerning  railway 
disputes  in  the  Conciliation  and  Labor  Act. 

Section  57.  Emploj-ers  and  employees  shall  give  at  least  30  days'  notice 
of  an  intended  change  affecting  conditions  of  employment  with  respect  to 
wages  or  hours;  and  in  every  case  where  a  dispute  has  been  referred  to  a 
Board,  until  the  dispute  has  been  finally  dealt  with  by  the  Board,  neither  of 
the  parties  nor  the  emploj'ees  affected  shall  alter  the  conditions  of  emplo}^- 
ment  with  respect  to  wages  or  hours,  or  on  account  of  the  dispute  do  or  be 
concerned  in  doing,  directly  or  indirectly,  anj'thing  in  the  nature  of  a  lockout 
or  strike,  or  a  suspension  or  discontinuance  of  employment  or  w'ork,  but  the 
relationship  of  emploj-er  and  emploj'ee  shall  continue  uninterrui)ted  by  the 
dispute,  or  anything  arising  out  of  the  dispute;  but  if,  in  the  opinion  of  the 
Board,  either  party  uses  this  or  any  other  provision  of  this  Act  for  the  pur- 
pose of  unjustly  maintaining  a  given  condition  of  affairs  through  delay,  and 
the  Board  so  reports  to  the  Minister,  such  party  shall  be  guilty  of  an  offense, 
and  liable  to  the  same  penalties  as  are  imposed  for  a  violation  of  the  next 
preceding  section. 

Section  58.  Any  employer  declaring  or  causing  a  lockout  contrary  to 
the  provisions  of  this  Act  shall  be  liable  to  a  fine  of  not  less  than  $100,  nor 
more  than  $1000  for  each  day  or  part  of  a  day  that  such  lockout  exists. 

Section  59.  Any  emplo3'ee  who  goes  on  strike  contrarj^  to  the  provisions 
of  this  Act  shall  be  liable  to  a  fine  of  not  less  than  $10  nor  more  than  $50,  for 
each  day  or  part  of  a  day  that  such  employee  is  on  strike.  .  .  . 

Section  60.  Any  person  who  incites,  encourages,  or  aids  in  any  manner 
any  employer  to  declare  or  continue  a  lockout,  or  any  employee  to  go  or  con- 
tinue on  strike  contrary  to  the  provisions  of  this  Act,  shall  be  guilty  of  an 
offense  and  liable  to  a  fine  of  not  less  than  $50  nor  more  than  $1000. 

Special  Provisions 

Section  62.  Either  part}'  to  a  dispute  which  may  be  referred  under  this 
Act  to  a  Board  may  agree  in  writing,  at  any  time  before  or  after  the  Board 
has  made  its  report  and  recommendation,  to  be  bound  by  the  recommenda- 
tion of  the  Board  in  the  same  manner  as  parties  arc  bound  upon  an  award 
made  pursuant  to  a  reference  to  arbitration  on  the  order  of  a  court  of  record; 
every  agreement  so  to  bo  bound  made  by  one  party  shall  be  forwarded  to 
the  Registrar  who  shall  communicate  it  to  the  other  i)arty,  and  if  the  other 
party  agrees  in  like  manner  to  1)0  bound  by  tho  roconniioiulation  of  the  Board, 
then  the  recommendation  shall  be  made  a  rule  of  the  said  court  on  tho  appli- 
cation of  either  party  and  shall  be  enforceable  in  like  manner. 

Section  63.  In  the  event  of  a  disinite  arising  in  any  industry  or  trade 
other  than  such  as  may  be  included  under  the  provisions  of  this  Act,  and  such 
dispute  threatens  to  result  in  a  lo(;koiit  or  strike,  or  has  actually  resulted  in  a 


SECT.  I]  CANADIAN  INDUSTRIAL   DISPUTES  ACT  879 

lockout  or  strike,  either  of  the  parties  may  agree  in  writing  to  allow  such  dis- 
pute to  he  referred  to  a  Board  of  Conciliation  and  Investigation,  to  be  con- 
stituted under  the  provisions  of  this  Act. 

2.  Every  agreement  to  allow  such  reference  shall  be  forwarded  to  the 
Registrar,  who  shall  communicate  it  to  the  other  party,  and  if  such  other 
party  agrees  in  like  manner  to  allow  the  dispute  to  be  referred  to  a  Board,  the 
dispute  may  be  so  referred  as  if  the  industry  or  trade  and  the  parties  were  in- 
cluded within  the  provisions  of  this  Act. 

3.  From  the  time  that  the  parties  have  been  notified  in  writing  by  the 
Registrar  that  in  conseciuence  of  their  mutual  agreement  to  refer  the  dispute 
to  a  Board  under  the  provisions  of  this  Act,  the  Minister  has  decided  to  refer 
such  dispute,  the  lockout  or  strike,  if  in  existence,  shall  forthwith  cease,  and 
the  provisions  of  this  Act  shall  bind  the  parties. 

Miscellaneous 

Section  64.  No  court  of  the  Dominion  of  Canada,  or  of  any  province  or 
territor\^  thereof,  shall  have  power  or  jurisdiction  to  recognize  or  enforce, 
or  to  receive  in  evidence  any  report  of  a  Board,  or  any  testimony  or  proceed- 
ings before  a  Board,  as  against  any  person  or  for  any  purpose,  except  in  the 
case  of  a  prosecution  of  such  person  for  perjury. 

Section  65.  No  proceeding  under  this  Act  shall  be  deemed  invalid  by 
reason  of  any  defect  of  form  or  any  technical  irregularity. '  .  .  . 


REX  V.  McGUIRE 

High  Court  of  Justice  of  Ontario.     1908 

16  Ontario  Law  Rep.  522 

February  12.  Clute,  J.:  Rule  msi  to  quash  a  conviction  made  by 
the  police  magistrate  of  the  town  of  Cobalt  whereby  James  McGuire 
was  convicted,  "for  that  he  did  unlawfully  incite  the  employees  of  the 
Nipissing  Mining  Co.  Limited,  to  go  on  strike,  on  the  2nd  day  of  July, 
A.D.  1907,  and  said  magistrate  did  adjudge  the  said  James  McGuire 
for  his  said  offence  to  forfeit  and  pay  the  sum  of  five  hundred  dollars, 
and  in  default  of  immediate  payment  of  the  said  sum,  to  be  imprisoned 
in  the  common  gaol  at  North  Bay." 

'  For  a  careful  discussion  of  the  merits  and  practical  effect  of  the  Canadian 
Industrial  Disputes  Act,  see  Benjamin  M.  Squires,  U.  S.  Bureau  of  Labor  Statistics, 
Bulletin  No.  233,  especially  pp.  13.5-139.  For  a  brief  account  of  cases  decided 
under  the  Act,  see  Ibid.,  pp.  132-135. 

Arbitration  Legislation  in  the  United  States:  For  an  American  statute 
based  upon  the  Canadian  Act,  see  Colorado  Laws,  1915,  ch.  180  (in  certain  des- 
ignated essential  industries  no  change  in  terms  of  employment  shall  be  made 
without  30  days'  notice,  and  no  strike  or  lockout  .shall  be  declared  prior  to  or  dur- 
ing a  reference  of  a  dispute  to  arbitration)  A  majority  of  the  American  states 
have  legislation  designed  to  provide  machinery  for  the  voluntary  settlement  of 
industrial  disputes,  but  most  of  these  do  not  even  temporarily  deny  the  right  to 
strike.  For  a  good,  brief  account  of  such  state  and  federal  legislation,  see  Com- 
mons and  Andrews,  Principles  of  Labor  Legislation  (1920  ed.),  pp.  136-149. 

For  a  case  upholding  the  constitutionality  of  such  a  statute,  see  Moore  Drop 
Forging  Co.  v.  Fisher,  132  N.  E.  (Mass.)  169. 


880  COMPULSORY  ARBITRATION  [CHAP.  XIX 

The  principal  objection  argued  was  that  the  magistrate  had  no 
jurisdiction  to  try  the  case  under  the  Industrial  Disputes  Investiga- 
tion Act  of  1907,  as  the  Act  was  not  invoked  by  either  the  mine 
•  owners  or  the  workmen,  and  was  not,  therefore,  in  force  at  the  time 
when  the  said  offence  was  alleged. to  be  committed. 

The  conviction  was  made,  as  appears  from  the  proceedings  before 
the  magistrate,  under  sec.  60  of  the  said  Act,  which  is  as  follows: 
"Any  person  who  incites,  encourages  or  aids  in  any  manner  any 
employer  to  declare  or  continue  a  lockout,  or  any  employee  ,to  go, 
or  continue  on  strike,  contrary  to  the  provisions  of  this  Act,  shall  be 
guilty  of  an  offence,  and  liable  to  a  fine  of  not  less  than  $50  nor  more 
than  $1,000." 

When  is  a  strike  contrary'  to  the  provisions  of  the  Act?  IVIi'.  Eu 
Vernet  says  onlj^  after  the  Act  has  been  invoked  by  either  the  em- 
ployer or  employees,  and  that  is  the  question  involved  in  this  appeal. 

"Dispute"  is  defined  by  sec.  2,  sub-sec.  (e),  to  mean  any  dispute 
or  difference  between  an  employer  and  one  or  more  of  his  employees, 
as  to  matters  or  things  affecting  or  relating  to  work  done  or  to  be 
done  by  him  or  them,  etc.,  and  includes  all  matters  relating  to  wages, 
the  hours  of  employment,  etc. 

The  definition  is  not  limited  to  a  dispute  where  the  Act  has  already 
been  invoked. 

"Strike,"  by  sub-sec.  (g)  of  sec.  2  (without  limiting  the  nature 
of  its  meaning),  means  the  cessation  of  work  by  a  body  of  employees 
acting  in  combination  ...  in  consequence  of  a  dispute,  done  as  a 
means  of  compelling  their  employer  ...  to  accept  terms  of  em- 
ployment. Section  5  provides  for  a  reference  of  disputes  to  boards 
of  conciliation  and  investigation.  Section  56  declares  that  "it  shall 
be  unlawful  for  any  employer  to  declare  or  cause  a  lockout,  or  for 
any  employee  to  go  on  strike,  on  account  of  any  dispute  prior  to  or 
during  a  reference  of  such  dispute  to  a  board  of  conciliation,"  etc. 

The  evidence  was  clear  that  the  defendant  did  incite  the  employees 
of  the  mine  to  go  on  strike,  on  account  of  a  dispute  within  the  mean- 
ing of  sec.  2,  sub-sec.  (e).  The  fact  that  the  dispute  was  prior  to  a 
reference  of  such  dispute  to  a  lioard  of  conciliation  is  expi'cssly  pro- 
vided for  by  sec.  56,  and  is  thereby  declared  to  be  unlawful. 

I  think  the  meaning  of  the  statute  to  be  that  in  the  class  of  cases 
to  which  it  applies  there  shall  be  no  lockout  or  strike,  on  account 
of  any  dispute  as  therein  defined  either  prior  to  or  dm-ing  a  reference 
under  the  Act.    I  think  the  Act  applies,  and  that  there  was  evidence 
to  support  the  conviction. 

The  information  is  in  the  words  of  the  statute,  and  is,  I  think, 
sufficient.    The  conviction  follows  the  information. 

That  part  of  the  conviction,  however,  im])osing  six  months'  im- 
prisonment in  default  of  payment  of  the  penalty  imposed,  is  in  excess 
of  that  which  could  be  lawfully  imposed.  ...  '■' 

The  conviction  should  be  amended  by  reducing   the  term  of  im- 


SECT.  II]  AUSTRALIAN   INDUSTRIAL  COURT  881 

prisonment  for  default  of  payment  of  the  penalty  imposed  from 
six  to  three  months,  and  in  other  respects  the  appeal  should  be  dis- 
missed, and  as  it  was  necessary  that  the  defendant  should  move  in 
order  that  the  sentence  might  be  reduced,  there  should  be  no  costs. 

Section  2.     The  Australian  Court  of  Conciliation  and  Arbitration  ' 

HiGGiNS,  J.,  IN  BARRIER  BRANCH  OF  AMALGAMATED 
MINERS'  ASSN.  v.  BROKEN  HILL  PROPRIETARY  CO.  Ltd. 

3  Com.  Arh.  Rep.  1,  20-21  (1909) 

THE    LIVING   WAGE 

Now,  the  first  condition  in  the  settlement  of  this  industrial  dis- 
pute as  to  wages  is  that,  at  the  very  least,  a  living  wage  should  be 
secured  to  the  employees.  I  cannot  conceive  of  any  such  industrial 
dispute  as  this  being  settled  effectively  which  fails  to  secure  to  the 
labourer  enough  wherewith  to  renew  his  strength  and  to  maintain  his 
home  from  day  to  day.  He  will  dispute,  he  must  dispute,  until  he 
gets  this  minimum ;  even  as  a  man  immersed  can  never  rest  until  he 
gets  his  head  above  the  water.  Nor  do  I  see  any  reason  yet  for  modi- 
fying my  view  of  a  living  wage  as  expressed  in  the  Harvester  case 
(2  C.  A.  R.  1),  and  in  the  Marine  Cooks  case  (2  C.  A.  R.  55).  In 
finding  the  living  wage,  I  look,  therefore,  to  find  what  money  is 
necessary  to  satisfy  "the  normal  needs  of  the  average  "employee 
regarded  as  a  human  being  living  in  a  civilized  community." 
"In  the  present  case,  it  was  reassuring  to  find  that  counsel  for  the 
Company,  the  General  Manager,  and  even  the  Chairman  of  Directors, 
notwithstanding  his  strong  prepossessions  in  favour  of  the  inexorable 
laws  of  demand  and  supply,  all  assented  to  the  doctrine  that  no  man 
ought  to  be  asked  to  work  for  less  than  a  living  wage.  The  result 
of  this  admission  is  that  I  may  proceed  to  consider  the  prices  of 
necessary  commodities  at  Broken  Hill  and  at  Port  Pirie,  in  order  to 
ascertain  what  is  the  least  sum  that  will  enable  an  unskilled  labourer 
to  live  in  the  sense  to  which  I  have  referred.  .  .  . 

1  Created  under  the  Commonwealth  Conciliation  &  Arbitration  Act  of   1904. 

Although  each  State  of  the  Australian  Commonwealth  is  in  general  left  to  deal 
with  its  own  labor  conditions  as  it  deems  best,  yet,  as  an  exception,  the  federal 
government  is  given  power  to  make  laws  with  respect  to  "conciliation  and  arbitra- 
tion for  the  prevention  and  settlement  of  industrial  disputes  extending  beyond 
the  limits  of  any  one  State"  (Australian  Federal  Constitution  of  1900,  Sec.  51 
(XXXV)).  The  Act  of  1904,  passed  in  pursuance  of  this  power,  created  a  Court 
of  Conciliation  and  Arbitration  with  the  power  of  rendering  compulsory  awards, 
i.  e.,' binding  upon  the  parties  to  the  dispute.  The  Act  makes  a  strike  or  lock- 
out an  offense  if  the  dispute  is  within  the  ambit  of  the  Act,  —  i.  e.,  if  the  dispute 
is  one  that  extends  "beyond  the  limits  of  one  State."  The  Court  can  summon 
parties  and  witnesses,  issue  interlocutory  orders,  enter  final  judgments  and  de- 
crees and  punish  for  contempt.  Its  judgments  are  enforceable  by  execution,  which 
may  be  levied  upon  the  funds  or  other  property  of  a  judgment  debtor  union  or 
association. 

For  references,  see  note  1,  p.  875,  supra. 


882  COMPULSORY  ARBITRATION  [CHAP.  XIX 

W.  Jethro  Brown,  J.,  in  THE  LIVING  WAGE 
(TINSMITHS')  CASE 

1  South  Australian  Industrial  Reports  (1916-18),  55,  82 

The  importance  of  maintaining  the  living  wage  at  a  reasonable 
figure,  from  the  point  of  view  of  the  community,  is  well  expressed  by 
Mr.  Phillip  Snowden:  "The  cost  to  individuals  and  to  the  community 
of  the  poverty  which  is  caused  by  inadequate  wages  cannot  be  esti- 
mated. We  pay  for  it  in  infantile  deaths,  in  crippled  and  damaged 
bodies  of  the  children  who  survive,  in  the  inadequate  return  we  get 
from  the  expenditure  in  education,  in  the  creation  of  unemployables, 
in  sickness  and  loss  of  work,  in  consumption  and  other  diseases,  in 
pauperism,  in  the  cost  of  public  and  charitable  institutions  for  the 
support  of  the  sick,  the  poor,  and  the  insane,  and  in  the  incalculable 
loss  of  industrial  and  mental  efficiency.  So  vital  is  it  to  the  main- 
tenance of  industrial  efficiency  of  the  community  that  labor  should 
be  paid  a  wage  which  enables  men  to  live  in  decency  and  comfort  that 
it  has  become  a  proverb  that  High  wages  pay,  while  cheap  wages  are 
dear  wages.''  (Snowden,  The  Living  Wage,  pp.  46-49.)  The  whole 
system  of  our  Wages  Boards  and  Industrial-  Courts  exists  in  part  to 
ensure  that  competition  in  the  labor  markets  shall  not  drive  the  rate 
of  wage  below  a  certain  standard.  But  there  is  one  aspect  of  the 
question  which  has  appealed  to  me  very  strongly  in  this  case.  Aus- 
tralia absolutely  needs  a  large  increase  of  population  for  its  defence  and 
for  the  development  of  its  resources.  Some  of  this  increase  may  come 
from  outside,  but  a  great  deal  of  the  increase  should  come  from  within 
the  Commonwealth.  //  the  living  wage  is  at  a  very  low  figure,  a  pre- 
mium is  put  on  celibacy,  and  on  a  low  birth  rate.  I  could  not  help  being 
impressed,  when  examining  some  of  the  budgets  exhibited  on  behalf 
of  the  employees,  by  the  fact  that  the  coming  of  a  baby  must  at  times 
assume  the  form  of  a  calamity.  The  confinement  expenses  are  not 
met  by  the  lodge  or  covered  by  the  Commonwealth  bonus;  but  that 
is  relatively  insignificant  as  compared  with  the  extra  mouth  to  feed 
and  the  extra  form  to  clothe.  //  we  are  not  to  put  a  terrible  discourage- 
ment upon  the  actual  growth  of  our  population,  it  is  of  the  first  importance 
to  maintain  a  reasonable  standard  of  the  living  wage. 

The  Living  Wage.  The  principle  of  the  living  wage  has  been  widely 
recognized.    Compare  the  following: 

United  States  National  War  Labor  Board.  "1.  The  right  of  all  workers, 
including  fommoii  laborers,  to  a  living  wage  is  hereby  declared.  2.  In  fixing 
wages,  mininniin  rates  of  pay  shall  be  established  which  will  in.'^iire  the  sub- 
sistence of  the  worker  and  his  family  in  health  and  reasonable  comfort." 
From  the  President's  Proclamation  of  April  S,  191S,  creating  the  National 
War  Labor  Board  (quoted  in  U.  S.  Bureau  of  Lal)or  Statistics,  No.  287, 
National  War  Labor  lioard,  p.  33).  See  application  of  this  principle  in  the 
Waynesboro  ca.ses  (Ibid.,  p.  168)  and  in  other  cases  classified  in  Ibid.,  pp. 
94-il5. 


SECT.  II]  AUSTRALIAN   INDUSTRIAL  COURT  883 

United  States  Railroad  Labor  Board.  "All  the  decisions  of  the  Labor 
Board  in  respect  to  wages  or  salaries  and  of  the  Labor  Board  or  an  adjust- 
ment board  in  respect  to  working  conditions  of  employees  or  subordinate 
officials  of  carriers  shall  establish  rates  of  wages  and  salaries  and  standards  of 
working  conditions,  which  in  the  opinion  of  the  board  are  just  and  reason- 
able. In  determining  the  justness  and  reasonableness  of  such  wages  and 
salaries  or  working  conditions  the  board  shall,  so  far  as  applicable,  take  into 
consideration  among  other  relevant  circumstances:  (1)  The  scales  of  wages 
paid  for  similar  kinds  of  work  in  other  industries;  (2)  The  relation  between 
wages  and  the  cost  of  living;  (3)  The  hazards  of  the  employment;  (4)  The 
training  and  skill  required;  (5)  The  degree  of  responsibility;  (6)  The  char- 
acter and  regularity  of  the  employment;  and  (7)  Inequalities  of  increases 
in  wages  or  of  treatment,  the  result  of  previous  wage  orders  or  adjust- 
ments."   Transportation  Act,  1920  (Esch-Cummins  Law),  sec.  307(d). 

Dominion  of  Canada  var  labor  policy.  "All  workers  including  common 
laborers  shall  be  entitled  to  a  wage  ample  to  enable  them  with  thrift  to  main- 
tain themselves  and  families  in  decency  and  comfort,  and  to  make  reason- 
able provision  for  old  age."  Labor  Gazette  of  the  Dominion  of  Canada, 
August,  1918,  p.  617. 

South  Australia  Industrial  Court.  The  Industrial  Arbitration  Act  of  1912 
of  South  Australia  (sec.  22)  defines  the  living  wage  as  "a  sum  sufficient  for 
the  normal  and  reasonable  needs  of  the  average  employ^  living  in  the  locality 
where  the  work  under  consideration  is  done  or  to  be  done."  Of  this  President 
W.  Jethro  Brown  of  the  South  Australian  Industrial  Court  saj^s:  "The 
statutory  definition  of  the  living  wage  is  a  wage  adeciuate  to  meet  the  normal 
and  reasonable  needs  of  the  worker.  In  other  words,  the  conception  is  ethical 
rather  than  economic.  The  Court  has  not  to  determine  the  value  of  the  serv- 
ices rendered,  but  to  determine  what  is  necessary  to  meet  normal  and  rela- 
tive needs.  It  should  be  obvious  that  in  the  interpretation  of  reasonable 
needs  the  court  cannot  be  wholly  indifferent  to  the  national  income.  The 
reasonable  needs  of  the  worker  in  a  community  where  national  income  is  high 
are  greater  than  the  reasonable  needs  of  the  worker  in  a  communitj^  where  the 
national  income  is  low."  The  Plumbers'  Case,  1  South  Australian  Industrial 
Rep.  (1916-18)  p.  122. 

See  also  The  Australian  Boot  Trade  Employees'  Federation  v.  Whybrow 
&  Co.,  4  Com.  Arb.  Rep.  (Australia)  1,  infra,  p.  883;  W.  Angliss  &  Co.  and 
The  Australasian  Meat  Industry  Employees'  Union,  10  Com.  Arb.  Rep.  465, 
infra,  p.  890;  Kansas  v.  The  Topeka  Edison  Co.,  Kansas  Court  of  Industrial 
Relations,  Docket  No.  3254-1-2,  infra,  p.  923. 

The  close  connection  between  "the  living  wage"  and  workingnien's 
budgets  is  apparent.     For  estimated  workingmen's  budgets,  see  Appendix. 


THE  AUSTRALIAN  BOOT  TRADE  EMPLOYEES' 
FEDERATION  v.  WHYBROW  &  CO.  et  al. 

Court  of  Conciliation  and  Arbitration  of  Australia.    1910 

4  Com.  Arb.  Rep.  1 

HiGGiNS,  J.    This  is  a  dispute  —  or  probably  I  should  say,  an  al- 
leged dispute  —  between  an  organization  —  at  all  events,  an  alleged 


884  COMPULSORY  ARBITRATION  [CHAP.  XIX 

organization  —  of  some  5000  emploj^ees  in  the  boot  trade,  and  nearly 
40  employers.  The  emploj'ers  carry  on  business  in  four  States  — 
some  in  Victoria,  some  in  New  South  Wales,  some  in  Queensland, 

some  in  South  Australia 

I  find  that  there  was,  and  is,  a  dispute  as  to  wages,  a  dispute  ex- 
tending bej^ond  the  Imiits  of  one  State.  No  one  who  has  seen  and 
heard  the  witnesses  in  the  several  States  could  fail  to  see  that  there 
is  a  real,  deep  seated,  long  standing,  persistent  and  general  discon- 
tent on  the  subject  of  wages  in  this  industry  —  not  sporadic,  but 
pervading  the  body  of  the  boot  employees  in  the  four  States;  a 
discontent  such  as  would  have  broken  out  in  strikes  and  suspension 
of  work,  but  for  the  hope  of  relief  from  this  Court.  The  discontent 
has  been  traced  back,  at  least  in  Victoria,  to  the  year  1883,  when  a 
piece-work  "statement  of  prices"  was  adopted  at  a  conference  be- 
tween the  Manufacturers'  Association  and  the  Operative  Bootmakers' 
Union.  .  .  . 

MINIMUM    WAGE 

Clause  3  [of  the  claim]  is  the  clause  as  to  wages.  It  seeks  a  mini- 
mum wage  of  Is.  4|(:/.  per  hour  for  all  males  who  are  adult  or  who  have 
had  five  years'  experience  or  have  served  their  apprenticeship.  The 
present  minimum  wage  under  the  New  South  Wales  and  Victorian 
Wages  Boards  is  Is.  per  hour,  or  48.s.  per  week  of  48  hours;  under 
the  South  Australian  Wages  Board  45s.  per  week  of  48  hours;  under 
the  Queensland  Wages  Board  40s.  per  week  of  48  hours. 

It  is  clear  that  the  minimum  would  have  been  fixed  higher  in  the 
Wages  Boards  but  for  the  dread  on  their  part  of  the  effects  of  the 
competition  of  manufacturers  of  other  States.  The  Chairman  of 
the  Queensland  Wages  Board  avowed  this  dread  as  his  reason  for 
fixing  40s.  as  the  minimum,  instead  of  45s.  or  48s.,  as  in  the  South- 
ern States  (Ex.  4).  I  find  that  this  consideration  of  inter-state  com- 
petition was  the  main  cause  of  the  refusal  of  the  State  Wages  Boards 
to  fix  a  more  liberal  minimum ;  and  it  is  assumed  on  all  sides  in  this 
case  that  it  is  not  inconsistent  with  the  provisions  of  the  Constitu- 
tion for  the  Wages  Boards  to  discourage,  by  this  device  of  low  wages, 
importations  from  other  States.  In  the  circumstances  of  Australia 
it  is,  indeed,  natural  for  a  State  Wages  Board,  or  any  other  State 
authority,  to  take  into  account  the  invasion  of  the  markets  of  its 
State  by  the  manufacturers  of  other  States.  .  .  . 

This  Court  is  not  hampered  in  its  action  by  liaving  to  adjust  its 
award  to  the  interest  of  any  particuhu-  State;  ...  it  is  authorized 
to  settle  disputes  as  may  sovu\  most  (>xp(Mli(Mit  in  the  interests  of 
Australia  as  a  whole. 

HOW   TO    FIX   THE    MINIMUM    WAGE 

Now,  as  I  cannot  conceive  of  inchistrial  peace  unless  and  until 
the  employee  has  secured  to  him  wages  sufficient  to  procure  for  him 


SECT.  II]  AUSTRALIAN  INDUSTRIAL  COURT  885 

the  essentials  of  human  existence,  I  have  adopted  the  system  of 
finding,  in  the  first  place,  what  is  -^he  least  sum  sufficient  to.  satisfy 
"the  normal  needs  of  the  average  employee,  regarded  as  a  human 
being  living  in  a  civilized  conmmnity."  This  system  is,  I  think, 
novel;  and  I  have  therefore  watched  eagerly  for  any  criticism  of  its 
basic  principle.  But,  putting  aside  the  natural  discontent  of  de- 
feated parties  and  their  partisans,  I  have  not  yet  seen  or  heard  of 
any  argument  tending  to  shake  the  principle,  or  to  show  me  what 
other  course  I  could  reasonably  adopt.  In  the  second  place,  I  take 
into  consideration  any  grounds  on  which  the  employees  who  make 
the  claim  urge  that  they  are  entitled  to  receive  more  than  ordinary 
labourers,  and  any  grounds,  including  grounds  of  finance,  of  com- 
petition, of  unfairness  to  other  workers,  of  undue  increase  in  prices, 
of  injury  to  the  public,  etc.,  on  which  the  employers  oppose  the 
claim.  On  the  evidence  before  me  in  previous  cases,  I  found  7s. 
per  day  to  be  the  minimum  for  the  labourer  in  many  parts  of  New 
South  Wales,  Victoria,  Queensland,  South  Australia,  and  Tasmania; 
and  Mr.  Justice  Gordon  has  adopted  the  same  minimum,  when  sit- 
ting in  the  Court  of  Industrial  Appeals  in  Adelaide.  I  understand 
that  the  practice  of  the  New  South  Wales  Court  is  the  same.  In 
this  case,  I  was  gratified  to  hear  from  the  claimant,  and  from  all 
the  respondents  in  New  South  Wales,  Victoria  and  South  Australia 
that  they  did  not  dispute  this  7.s.  minimum.  In  Queensland,  a  bold 
attempt  was  made  to  show  that  living  was  cheaper  there  than  in  the 
Southern  States;  but  it  failed.  The  more  I  have  investigated  living 
conditions  in  Australian  States,  the  more  I  have  been  struck  with 
the  similarity  of  habits,  of  standards  of  life,  of  prices  (I  mean  prices 
as  a  whole,  not  the  prices  of  each  commodity)  in  the  different  States 
—  with  the  probable  exception,  up  to  the  present,  of  Western  Aus- 
tralia. I  find  that  7s.  is  a  proper  minimum  wage  for  (so-called) 
unskilled  labourers  in  Brisbane  as  well  as  in  Sydney  or  in  Melbourne. 
The  only  question  is,  how  much  more,  if  any  more,  should  be  awarded 
to  bootmakers. 

Now  these  men  have  admittedly  special  skill  —  skill  in  its  broad 
sense.  Some  employers,  indeed,  in  their  zeal  for  extreme  subdivision 
of  subjects  of  apprenticeship,  have  tried  to  persuade  me  that  there 
is  more  skill  in  working  a  machine  than  I  should  have  thought  pos- 
sible; and,  whether  rightly  or  wrongly,  both  emploj^ers  and  em- 
ployees treat  skill  and  expertness  as  a  warrant  for  extra  wages. 
Those  who  work  as  "clickers"  —  cutting  uppers  for  boots  —  have 
distinctly  higher  skill  than  most  of  those  who  work  the  ingenious 
machines,  chiefly  American,  b}'  means  of  which  the  old-time  opera- 
tions of  the  handworkers  have  been  superseded.  These  machines 
require  close  attention  and  great  care,  in  order  to  avoid  the  spoiling 
of  the  material,  or  the  maiming  of  the  workers.  The  strain  of  the 
work  is  intense.  We  speak  of  labour-saving  machines;  but  they 
save  no  labour  to  the  worker.    For  him  thej^  involve  as  great  waste 


886  COMPULSORY  ARBITRATION  [CHAP.  XIX 

of  nerve  tissue  as  before.  He  gets  through  a  single  article  in  a  much 
shorter  time;  but  he  gets  through  many  more  articles.  By  the 
minute  subdivision  of  the  work  in  most  factories  —  for  there  are 
more  than  forty  processes  for  each  boot  —  the  worker  finds  himself 
compelled  to  keep  up  with  the  others  in  the  team.  He  must  treat 
the  articles  as  they  come  from  the  man  before  him,  and  must  not 
keep  the  man  waiting  who  comes  after  him.  On  the  other  hand  —  if 
and  as  far  as  the  fact  is  material  —  the  work  is  fairly  constant.  The 
factory  hand  cannot  be  treated  as  a  casual  labourer,  at  work  today 
and  idle  tomorrow.  It  seems  to  be  conceded  on  all  sides  that  he 
has  work,  as  a  rule,  for  ten  or  eleven  months  in  the  year,  the  rest 
of  the  time  being  taken  up  by  holidays,  stock-taking,  and  "out  of 
work."  .  .  . 

In  the  Harvester  case,  I  fixed  9s.  as  a  minimum  for  machinists  in 
metal;  and  there  is  much  general  resemblance  between  the  character 
of  the  work  of  such  machinists  and  the  work  of  these  factory  boot- 
makers. Mr.  Greenwood  admits  that  the  average  boot  employee 
should,  in  fairness,  have  more  than  8s.  per  day,  and  that  the  trade, 
by  using  better  equipment,  could  stand  a  10  per  cent  increase  (pp. 
685,  688,  689,  695).  I  have  decided  to  fix  the  minimum  at  9s.  per 
day.  .  .  . 

AGED,  SLOW,  AND    INFIRM    WORKERS 

In  claiming  an  award  of  a  minimum  wage,  the  claimants  would 
allow  an  exception,  not  only  in  the  case  of  apprentices,  but  also  in 
the  case  of  "aged  and  infirm  workers."  I  do  not  think  I  ought  to 
make  the  exception  so  narrow.  I  think  that  an  exception  should  be 
made  also  for  "slow"  workers  —  an  exception  which  would  cover 
workmen  who  cannot  attain  average  efficiency  —  sometimes  termed 
"improvers."  I  take  this  subject  of  "improvers"  to  be  included 
in  the  subject  of  dispute  "wages  to  be  paid  to  employees"  men- 
tioned in  the  plaint.  "  Improvers  "  are  persons  —  some  under  twenty- 
one,  some  over — who  do  not  get  the  minimum  wage.  There  is 
really  no  other  definition  that  fits  (see  also  Victorian  Factories  and 
Shops  Act,  1905,  sec.  5,  "improver  ").  Lads  whose  terms  of  appren- 
ticeship has  expired  but  who  have  not  attained  twenty-one;  lads  who 
have  been  working  elsewhere,  apprenticed  or  not  apprenticed,  and 
have  lost  their  job;  lads  or  men  employed  without  apprenticeship; 
men  who  for  some  reason  are  incapable  of  the  average  speed  or  skill, 
all  these  and  others  are  called  "improvers."  They  are  not  full 
journeymen;  and  yet  there  is  no  obligation  to  teach  them.  My  view 
is  that  those  who  are  under  twenty-one  should  be  taught  as  appren- 
tices, and  that  those  over  twenty-one  should  receive  full  journey- 
men's wages,  or  be  classed  among  the  slow  workers;  but  some  allow- 
ance must  be  made  for  the  period  of  transition.  I  do  not  see  why 
"in)provers"  cannot  l)e  regulated  by  the  same  machinery  as  other 
persons  who  receive  less  than  the  minimum  wage. 


I 


SECT.  II]  AUSTRALIAN  INDUSTRIAL   COURT  887 

As  to  aged,  slow,  and  infirm  workers,  the  practice  varies  in  the 
different  States.  I  am  told  that  in  Victoria  a  licence  or  "permit" 
is  given  by  the  Chief  Inspector  of  Factories  to  a  man  to  work  at 
less  than  the  minimum  wage,  on  the  declaration  of  the  applicant  him- 
self. The  ground  on  which  the  permission  is  given  is  not  stated  in 
the  permit.  There  is  no  publicity,  but  it  appears  that  since  I  gave 
judgment  in  the  Harvester  case,  it  has  been  the  practice  of  the  Chief 
Inspector  to  submit  applications  for  permits  to  the  Secretary  for  the 
Union,  if  the  appHcant  belongs  to  a  union.  A  may  be  working  at 
the  same  bench  as  B,  doing  the  same  work,  and  yet  not  knowing 
that  B  is  working  at  lower  wages  under  a  permit.  The  system  must 
be  sometimes  abused.  An  instance  was  given  me  of  a  man  fully 
competent,  who  was  anxious  to  get  back  to  work  in  his  trade  after 
a  drinking  bout;  and  to  induce  the  employer  to  take  him  —  probably 
instead  of  some  other  man  on  full  journeyman's  pay  —  he  got  a 
permit  alleging  that  he  was  a  slow  worker.  In  a  few  days  he  re- 
signed the  permit,  admitting  in  writing  that  he  had  no  right  to  do 
it.  Again,  an  advertisement  for  a  clicker  was  put  in  evidence,  which 
appeared  in  a  newspaper  of  30th  September,  1909,  which  ran  as 
follows :^ — "Boot  Trade,  Smart  Clicker,  with  permit  preferred." 
The  name  and  address  of  the  employer  followed.  It  is  due  to  the 
respondents  to  say  that  the  advertisement  was  not  from  any  of  them ; 
but  the  advertisement  is  an  indication  of  the  subterranean  forces  at 
work.  I  think  it  not  unreasonable  to  insist  on  more  investigation, 
more  precautions  with  regard  to  permits.  If  the  Secretary,  or  local 
Secretary,  of  the  organization,  sign  a  consent  to  the  permit,  there 
need  be  no  further  trouble.  But  if  he  refuse,  the  case  may  be  left 
to  a  Board  of  Reference,  consisting  of  an  equal  number  of  employers 
and  employed.  In  New  South  Wales  the  matter  is  settled,  in  nearly 
every  case,  by  such  a  Board  of  Reference.  If  the  members  are  equally 
divided,  let  the  Registrar  or  Deputy  Registrar  decide.  .  .  . 

Minutes  of  Award 
Award  Order  and  Prescribe  — 

MINIMUM    WAGE 

1.  The  minimum  rate  of  wages  to  be  paid  to  male  employees  on 
time-work  shall  (with  the  exceptions  hereinafter  mentioned  and  sub- 
ject to  the  provisions  for  transition)  be  Is.  l^d.  per  hour. 

The  exceptions  are :  — 

(a)  Apprentices  as  hereinafter  defined. 

(b)  Lads  under  21  not  apprenticed.  .  .  . 

(c)  Aged,  slow,  and  infirm  workers  as  hereinafter  defined. 

2.  An  "apprentice"  means  any  male  person  under  the  age  of  21 
years  who  is  duly  apprenticed  to  an  employer  for  any  time  not  less 
than  four  years.  .  .  . 


COMPUl,SORY   ARBITRATION  [CHAP.  XIX 

AGED,  SLOW,  AND    INFIRM    WORKERS 

7.  The  expressions  "aged,"  "slow,"  or  "infirm"  workers  mean 
persons  to  whom  a  Kcence  or  permit  has  been  given  for  a  period  of 
not  more  than  one  year  on  account  of  age  or  slowness  or  infirmity  by 
the  Chief  Inspector  of  Factories  or  other  competent  authority  of 
the  State  of  emplo\Tnent  with  the  written  consent  of  the  General 
Secretary  or  of  the  State  Secretary  of  the  claimant  organization. 

The  licence  or  permit  must  state  the  specific  ground  on  which  it 
has  been  granted,  and  the  minimum  wage  permitted,  and  must  relate 
to  one  employer  only. 

A  duplicate  of  the  licence  or  permit  must  be  lodged  with  the  Regis- 
trar, and  be  available  for  inspection  by  such  persons  as  he  shall  think 
fit. 

Fresh  licences  or  permits  may  be  given  from  time  to  time  to  the 
same  person.^  .  .  . 

FEDERATED    ENGINE-DRIVERS'   &   FIREMEN'S  ASSOCI- 
ATION OF  AUSTRALASIA  v.  BROKEN   HILL 
PROPRIETARY   CO.  LTD.  et  al. 

Court  of  Conciliation  and  Arbitration  of  Australia 

1913 

7  Com.  Arb.  Rep.  132 

This  was  a  dispute  between  an  organization  registered  under 
the  Act  and  employers  of  engine-drivers  in  New  South  Wales,  Vic- 
toria, South  Australia,  Queensland,  and  Tasmania,  .  .  . 

HiGGiNS,  J.  I  have  here  two  formidable  plaints  awaiting  decision. 
The  claimant  in  each  case  is  the  same  craft  union  —  an  organisation 
of  engine-drivers,  firemen,  etc.  —  an  association  of  men  who  can 
give  or  refuse  motive  power  for  the  working  of  many  industries,  an 
association  which  has  consistently  discountenanced  the  method  of 
"strike,"  seeking  the  remedy  for  grievances  in  Wages  Boards  and 
in  arbitration.  .  .  .  The  plaint  (No.  6  of  1910)  was  filed  on  15th 
October,  1910.  I  hoard  the  case  at  great  length;  and,  on  the  12th 
May,  1911,  I  announced  the  award  which  I  proposed  to  make.  .  .  . 

In  my  judgment  delivered  on  the  12th  May,  1911,  with  regard 
to  plaint  No.  6  of  1910,  I  have  set  out  at  length  the  considerations 

'  In  Federated  Seamen's  Union  of  Australia  r.  The  Commonwealth  Steamship 
Owners'  Assn.,  .5  Com.  Arb.  Rej).  147,  1G4,  Hingins,  J.,  says:  "The  Art  is  not  an 
Aft  for  profit  sharinp,  hut  for  securing  jieaee  in  industries;  and  the  best  way  of 
s  eurinjj  peace  is  to  secure  to  the  man,  as  far  as  possil)le,  wajtes  and  conditions  of 
life  on  a  level  with  the  current  standards  of  the  comnuinity.  I  allow  the  increase 
without  knowing  the  profits." 

See,  in  accord,  the  very  interesting  case  decided  in  the  Industrial  C'ourt  of 
South  Australia,  entitled  Carpenters'  and  Joiners'  Case,  South  Australian  Indus- 
trial Rep.  1917  fvol.  1),  No.  10,  1)1).  .3-8. 


SECT.  II]  AUSTRALIAN   INDUSTRIAL   COURT  889 

which  influenced  me  in  framing  the  award  in  the  form  which  I  pro- 
posed (5  C.  A.  R.  9) ;  and  I  do  not  intend  to  repeat  them.  As  the 
result  of  further  discussion,  I  have  made  some  alterations  in  detail, 
but,  in  the  main,  I  adhere  to  my  proposed  award.  Time  has  flown, 
however,  and  prices  have  greatly  risen;  and  I  have  to  give  effect 
as  far  as  possible  to  the  marked  increase  of  the  cost  of  living  which 
has  taken  place  between  May,  1911,  and  October,  1913.  Accord- 
ing to  the  Commonwealth  Statistician,  even  in  the  short  period  from 
1911  to  1913  (first  quarter),  and  taking  the  weighted  average  for  the 
six  capital  cities  —  groceries,  food,  and  rent  —  the  increase  is  over 
11  per  cent.  {Labour  Bulletin,  May,  1913  —  Ex.  Q3.)  Evidence 
adduced  as  to  all  parts  of  the  five  States  here  concerned  confirms  the 
fact  of  increase  —  evidence  from  Sydney,  Lithgow,  Burraga,  Mel- 
bourne, Stanthorpe,  Yarraville,  Launceston,  etc.  A  grocer  from 
Yarraville,  on  a  careful  computation  of  the  ordinary  purchases  of  a 
small  working-class  family,  calculates  that  for  such  grocer's  com- 
modities as  10s.  Srf.  would  purchase  in  his  shop  in  May,  1911,  the 
sum  of  12s.  2d.  would  be  necessary  in  May,  1913.  This  means  14 
per  cent  increase;  and  meat,  rent,  and  clothes  have,  generally  speak- 
ing, increased  also.  The  increase  has  been  reflected  in  voluntary 
agreements,  awards,  Wages  Board  determinations.  .  .  . 

There  has  been  no  award  in  recent  years  applicable  to  these  col- 
lieries, and  it  is  highly  necessary  that  the  rates  shall  be  raised  so  as 
to  reflect,  to  some  extent,  the  increase  in  the  cost  of  living. 

I  have  been  compelled,  under  the  circumstances,  to  raise  the  rates 
for  ordinary  engine-drivers  from  10s.  and  9s.  per  day  as  proposed 
by  my  award  in  May,  1911,  to  lis.  and  10s.  per  day,  and  to  grant 
increases  on  similar  lines  to  the  employees  of  other  classes.  This 
applies,  at  all  events,  to  Sydney  and  places  on  substantially  the 
same  level  as  Sydney  as  to  cost  of  living. 

It  has  been  urged  very  strongly,  on  behalf  of  numerous  gold  min- 
ing companies  in  Victoria,  parties  to  the  second  plaint,  that  to  award 
the  rates  which  are  paid  for  similar  work  in  New  South  Wales  will 
force  the  mines  to  cease  operations,  and  thus  throw  many  men  out 
of  employment.  According  to  a  return  furnished  by  the  Victorian 
Minister  of  Mines  to  the  Legislative  Assembly,  the  calls  in  the  Vic- 
torian mining  companies  for  1908  exceeded  the  dividends.  The 
dividends  were  £319,293,  the  calls  £395,887.  The  dividends,  so 
recently  as  1904,  were  £623,397.  According  to  the  annual  report 
of  the  Secretary  for  Mines  for  1911,  the  annual  yield  of  gold  in  Vic- 
toria has  been  for  many  years  steadily  diminishing;  and  in  1911 
there  was  the  lowest  yield  since  1851  —  542,074  ozs.  gross.  It  has 
been  still  less  in  1912.  .  .  .  The  inference  which  I  should  draw  from 
these  figures,  and  from  other  figures  relating  to  particular  com- 
panies, is,  not  that  an  increase  of  Is.  per  day  for  the  engine-driver 
will  close  down  the  mine,  but  that,  in  most  cases,  the  companies 
cannot,  on  their  present  production,  pay  any  wages  at  all.    In  most 


890  COMPULSORY  ARBITRATION  [CHAP.  XIX 

cases,  the  mines  are  kept  going  by  the  voluntary  contributions  of 
shareholders  hoping  against  hope.  The  Victorian  mines  are  mostly 
held  by  "no-liability"  companies.  It  is  not  for  me  —  it  is  for  ex- 
perts in  the  industry  —  to  say  whether  the  "no-liability"  system 
tends  to  the  starting  of  bogus  companies  without  sufficient  investi- 
gation of  the  ground,  and  to  the  working  of  honest  mines  without  the 
application  of  sufficient  capital.  But  if  the  shareholders  in  these 
companies  are  willing  to  stake  their  money  on  a  speculation,  why 
should  they  stake  part  of  the  employees'  proper  wages  also  —  the 
employee  not  taking  any  of  the  profit  if  the  speculation  be  success- 
ful.' As  I  have  often  said,  the  ideal  at  which  this  Court  aims  is 
peace — industrial  peace  (as  to  matters  affecting  two  or  more  States) ; 
and  it  is  not  my  duty  to  try  to  keep  unprofitable  mines  going  at 
the  risk  of  disturbance  to  such  peace.  Nothing  is  more  certain 
to  produce  discontent  and  unrest  in  an  industry  as  a  considerable 
increase  in  the  cost  of  living  without  a  corresponding  increase  in  the 
wages.  The  essential  natural  needs  of  the  worker  and  his  family 
have  first  to  be  met;  and  then  the  conventional  needs,  which  are 
almost  equally  imperative.  There  is,  admittedly,  a  great  increase 
in  the  cost  of  commodities  all  over  the  civilised  world  —  in  countries 
which  have  no  Wages  Boards  as  well  as  in  countries  which  have 
them;  and  there  is,  simultaneously,  an  industrial  unrest  which 
cannot  be  allayed  without  increase  of  wages.  I  find  that  the  Vic- 
torian Wages  Boards  which  deal  with  the  gold  mines  have  kept  the 
wages  below  the  legitimate  level  in  order  not  to  hurt  the  mining  in- 
dustry; but  with  how  poor  a  result!  There  is  nothing  whatever  to 
show  that  the  low  wages  will  keep  the  mines  from  closing  down,  or 
will  enable  the  companies  to  find  gold.  The  Wages  Boards  and  this 
Court  have  to  fix  a  minimum  wage  to  meet  the  needs  of  a  frugal, 
civilised  worker;  the  Mines  Acts  and  regulations  fix  a  minimum  for 
ventilation,  sanitation,  timbering,  machinery,  etc.:  why  should  the 
former  minimum  be  cut  down  any  more  than  the  latter,  by  reason 
of  the  present  unproductive  character  of  a  speculative  property .^^^  .  .  . 

W.  ANGLISS  &  CO.  AND  THE  AUSTRALASIAN   MEAT    IN- 
DUSTRY EMPLOYEES'  UNION  and  others 
Court  of  Conciliation  and  Arbitration  of  Australia.    1916 

10  Com.  Arh.  Rep.  405 

THE    BASIC    WAGE 

HiOGiNS,  J.  .  .  .  In  this  cas<>,  I  have  welcomed  —  at  last  —  a 
rational  discussion  of  the  principles  on  which  this  Court  has  hitherto 
ascertained  the  "basic"  wage —  (I  think  the  name  was  first  given 
by  me)  —  both  as  to  its  elemental  factors  and  as  to  the  mode  of 

'  Compare  Davidson  v.  The  Joplin  «fe  PittshurK  Ily.  Co.,  Kansas  Court  of 
InduHt.  Kcl.,  Docket  No.  :328;J,  infra,  p.  <)2S.     S(>(!  also,  noto  1,  [).  O.'i."},  infra. 


I 


SECT.  II]  AUSTRALIAN  INDUSTRIAL  COURT  891 

ascertaining  the  appropriate  variations  from  time  to  time.  On  both 
subjects,  Mr.  Parsons  has  very  properly  referred  me  to  the  elaborate 
and  interesting  pronouncements  of  Mr.  Justice  Heydon,  as  reported 
in  the  New  South  Wales  Industrial  Gazette  for  March,  1914  (p.  100), 
and  of  the  same  learned  Judge,  with  Mr.  Justice  Edmunds,  in  their 
recent  reconsideration  of  the  matter  on  August  18th  last.  I  have 
also  had  the  advantage  of  reading,  since  I  reserved  my  judgment, 
a  similar  pronouncement  made  by  Professor  Jethro  Brown,  as  pres- 
ident of  the  Industrial  Court  of  South  Australia,  in  connexion  with 
the  tinsmiths'  case,  5th  September  current.  Criticism  is  desirable 
—  is  essential  —  on  a  subject  so  novel  and  difficult;  and  I  have  not 
seen  any  other  Austrahan  criticism  which  approaches  these  utter- 
ances in  value.  I  am  far  more  surprised  at  the  number  of  points  of 
agreement  found  in  the  three  several  and  independent  Courts  than 
at  the  points  of  difference.  No  Court  in  Australia,  I  think,  lends 
its  sanction  to  that  dragon  fallacy  that  so  often  raises  its  shattered 
head  from  the  slime  —  that  increases  in  wages  do  no  good  to  the 
wage-earners  on  the  ground  that  they  raise  the  cost  of  living  propor- 
tionately; and  no  Court  rejects  the  principle  of  a  living  wage  as  an 
essential  first  condition  in  any  bargain  between  employer  and  em- 
ployee. It  is  also  reassuring  to  see  a  consensus  of  opinion  as  to  the 
need  for  finding  a  basic  wage,  based  on  the  cost  of  living,  as  dis- 
tinguished from  the  secondary  wage,  based  on  skill  or  other  excep- 
tional qualifications;  to  find  also  agreement  as  to  the  fundamental 
principles  and  methods  for  ascertaining  the  basic  wage;  and  to  find 
even  approximately  similar  results.  Even  if  I  should  be  constrained 
to  award,  because  of  the  high  prices  during  the  war,  60s.  per  week 
for  labourers,  as  claimed,  it  seems  that  in  Sydney  the  Industrial 
Court  would  award  55s.  Qd.,  and  that  in  Adelaide  the  Industrial 
Court  would  award  54s.  I  had  feared  that  the  difference  would  be 
greater;  for  the  State  tribunals  are  naturally,  and  —  if  I  may  pre- 
sume to  say  so  —  properly,  influenced  by  considerations  of  inter- 
State  competition  —  considerations  which  do  not  embarrass  this 
Court.  For  this  Court,  and  this  Court  only,  can  deal  with  manu- 
facturers and  others  on  both  sides  of  State  boundaries  in  one  award; 
it  is  not  forced  to  deny  full  justice  to  employees  in  one  city  on  the 
ground  that  it  would  be  unfair  to  employers  in  that  city  who  are  in 
competition  with  employers  in  another  city.  .  .  . 

In  ascertaining  the  basic  wage  from  time  to  time,  I  have  not  been 
in  the  habit  of  treating  the  valuable  tables  of  the  Commonwealth 
Statistician  as  showing  the  actual  cost  of  living  of  the  wage-earning 
classes.  The  statistician  finds  the  cost  of  a  definite  regimen,  made 
up  of  some  47  articles  (food,  groceries  and  rent),  as  purchased  by  all 
classes  of  the  community;  and  to  find  the  variations  in  prices  of 
these  articles  he  necessarily  has  had  to  adhere,  year  after  year,  to 
the  same  series  of  articles,  and  to  assume  that  they  are  consumed  in 
the  same  quantities.     No  one  can  point  out  how  the  statistician 


892  COMPULSORY  ARBITRATION  [CHAP.  XIX ' 

could  have  done  anything  better  for  his  purpose;  one  cannot  record 
changes  in  prices  of  articles  a,  b  and  c  without  keeping  to  a,  b  and 
c;  but  the  prices. of  this  regimen  do  not  directly  show  the  cost  of 
living  of  a  wage-earner's  family;  and  the  statistician  does  not  pre- 
tend that  they; do.  The  basic  wage  which  I  found  in  1907  —  at  a 
time  when  I  had  no  statistician's  tables  to  help  me  —  was  the  result 
of  the  selected  and  sifted  evidence  of  thrif t}-  and  careful  housekeeping 
women  whose  husbands  were  wage-earners.  I  recollect  that  counsel 
for  the  union  did  not  propose  to  call  any  such  evidence  till  I  sug- 
gested it;  and  when  these  witnesses  came,  without  notes  or  prepara- 
tion, the}^  showed,  each  in  her  own  artless  fashion,  how  every  shilling, 
almost  every  penny,  was  earmarked  for  some  necessary  family 
commodity.  There  was  no  margin  for  luxury  or  amusements;  in- 
deed, for  any  exceptional  expenditure  the  family  had  to  suffer  in 
necessaries.  One  wife  could  not  provide  meat  for  her  husband  on 
more  than  three  days  in  the  week,  although  he  was  engaged  in  stren- 
uous physical  labour  all  the  day  long.  This  was  my  starting  point  — 
7s.  per  day  in  Melbourne;  though  I  had  doubt  whether  it  should 
not  be  7s.  Qd.  Employers  and  employers'  representatives  have 
since  that  time  often  assured  me  that  the  figure  of  7s.  per  day,  42s. 
per  week,  was  not  a  penny  too  much  at  the  time. 

But,  since  1907,  prices  have  been  rising,  especially  the  prices  of 
food.  The  rise  was  steady  before  the  war;  but  since  the  war  it  has 
been  violent.  Australia  is  by  no  means  exceptional  in  this  respect. 
According  to  the  Labour  Gazette  of  the  Board  of  Trade,  for  March, 
1916,  the  increase  as  to  food  alone  has  been,  since  the  war  began, 
in  the  United  Kingdom  48  per  cent;  in  Berlin  88.5  per  cent;  in 
Copenhagen  —  in  a  neutral  countr}^  —  33.4  per  cent;  in  Australia 
(according  to  the  Commonwealth  Statistician)  over  30.0;  but  in 
Australia  the  August,  1916  returns  show  a  healthy  tendency  towards 
normal  prices.  The  rise  in  prices,  in  all  the  cost  of  living,  is  ad- 
mitted on  all  sides;  and  the  only  question  is  as  to  the  extent  of  the 
rise.  It  is  at  this  point  that  I  make  use  of  the  statistician's  tables; 
but  I  make  use  of  them  as  prima  facie  evidence  only.  These  tables 
purport  to  show  the  variations  in  the  purchasing  power  of  money, 
so  far  as  the  variations  in  the  prices  of  his  selected  regimen,  with  its 
47  items,  show  it.  The  statistician  does  not  affect  to  believe  that 
these  same  staple  commodities  in  the  same  quantities  are  purchased 
always  by  all  classes  in  all  localities,  or  by  all  families  in  a  class; 
but  he  says  that  "in  normal  circumstances  propiM'ly  computed  index 
numbers  of  food  and  groceries  and  house  rent  combined  form  one 
of  the  best  possible  measures  of  those  variations  in  the  purchasing 
power  of  money  which  affect  the  cost  of  living."  {Labour  and  In- 
dustrial Branch  Report,  No.  6,  p.  18.)  These  index  numbers  do  not 
deal  with  all  the  commodities  purchased  by  tlie  wage-eaniiiig  classes, 
and  some  of  the  selected  commodities  may  not  l)e  purchased  by  these 
classes  at  all;  but  —  until  the  contrary  be  shown  —  I  infer  that  the 


SECT.  II]  AUSTRALIAN  INDUSTRIAL  COURT  893 

depreciation  in  the  value  of  money  which  is  found  in  relation  to 
the  selected  commodities  is  to  be  found  also  in  relation  to  the  otlier 
commodities;  that  the  same  causes  produce  the  same  effects;  and 
the  contrary  has  not  been  shown.  It  is  all  a  matter  of  burden  of 
proof.  This  method  is  substantially  in  accordance  with  the  views 
and  intentions  of  the  Statistician;  for  he  says  —  "Once  a  standard 
of  living,  or  living  wage,  has  been  fixed,  the  tables  [as  to  the  pur- 
chasing power  of  money]  published  by  the  Commonwealth  Statisti- 
cian can  be  legitimately  used  as  showing  the  variations  in  the  cost 
of  living."    {Labour  Bulletin,  No.  14,  Oct.  1916,  p.  130.) 

At  p.  20  of  Report  No.  6,  the  Statistician  points  out  that  in  ab- 
normal circumstances  (such  as  war  or  drought)  people^  usually  change 
their  regimen,  under  stress.     His  price  indexes  would  still  "show 
the  variation  in  the  value  of  money  based  upon  the  normal  com- 
posite unit,"  although  they  are  not  quite  so  satisfactory  for  certain 
other  statistical  purposes.     It  is  here  —  in  the  change  of   regimcm 
—  that  one  finds  the  danger  signal.    A  compulsory  change  of  regimen 
on  the  part  of  labourers  who  receive  only  the  basic  wage  —  if  it  is 
a  true  basic  wage  —  must  mean  generally  an  inferior  regimen,  less 
sustenance,  a  failure  to  satisfy  the  normal  needs  of  civilised  men,  a 
diminution  of  physical  power,  a  decrease  in  efficiency;    whereas  a 
change  of  regimen  on  the  part  of  people  with  larger  incomes  is  not 
likely  to  involve  any  such  result.    When  it  appears,  as  in  this  case, 
that  one  respondent  has  opened  since  the  war  a  shop  or  stall  for  the 
sale  of  ox  cheek  and  cuttings  ofT  the  head,  for  which  he  had  no  market 
before,  but  which  people  buy  now  as  meat  is  so  dear,  such  a  fact 
makes  one  think.     The  wage-earner  —  if  a  manual  worker  —  can- 
not reduce  his  regimen  so  easily  as  the  people  of  other  classes  who 
have  not  so  much  physical  waste  to  make  up,  and  who  are  often 
actually  improved  by  a  lower  regimen.     I  notice  that  Mr.  Justice 
Powers,  in  his  judgment  delivered  in  the  Federated  Clerks'  case, 
March,  1916,  10  Com.  Arb.  Rep.  16,  has  spoken  as  to  the  necessity 
of  changing  one's  regimen  from  things  which  are  dear  to  things  which 
are  cheap.     He  has  spoken  of  the  duty  of  all  under  the  present  cir- 
cumstances, to  make  some  sacrifices ;  but  he  has  carefully  guarded  his 
words  by  making  them  apply  only  to  the  secondary  wage  —  "once 
the  living  wage  is  secured."    It  is  the  living  wage  that  is  now  being 
considered.    Yet  even  as  to  the  living  wage  it  is  always  open  to  em- 
ployers, to  prove,  if  they  can,  that  there  is  a  complete  regimen  which 
is  physiologically  as  good  as  the  kind  contemplated  in  the  calculations 
of  the  living  wage,  and  which  is  at  the  same  time  cheaper.    It  is  of 
no  use,  however,  to  point  out  merely  that  there  is  this  or  that  pos- 
sible substitute  for  this  or  that  favourite  article,  and  to  show  that  it 
would  be  cheaper.    It  is  of  no  use  merely  to  show,  for  example,  that 
ox  cheek  is  cheaper  than  rump  steak  or  than  ribs  of  beef.    I  am  told 
that  ox  cheek  is  actually  richer  in  grammes  of  protein,  but  that  it 
has  only  half  as  many  calories  as  steak  —  half  the  fuel  value,  half  the 


894  COMPULSORY  ARBITRATION  [CHAP.  XIX 

value  for  energy.  If  3500  calories  and  125  grammes  of  protein  be 
required  for  the  worker  per  day,  the  deficiency  must  be  made  up 
somehow;  so  that  it  is  idle  to  compare  the  different  regimens  ex- 
cept in  their  totality.  But  although  the  Court  may  fairly  be  asked 
to  revise  its  conclusions  as  to  the  living  wage  on  being  shown  that 
there  is  as  good  a  regimen  which  is  cheaper,  it  must  avoid  the  morass 
of  faddism.  It  must  decline  to  be  led  into  the  absurd  position  of 
deciding  between  rival  theories  as  to  diet  —  for  example,  between  a 
vegetarian  diet  and  a  diet  in  which  animal  food  is  allowed.  It  must 
take  the  habits  of  the  people  as  they  are,  must  refuse  to  dictate  what 
to  eat  and  what  not  to  eat ;  must  accept  the  practice  of  thrifty  wage- 
earners'  homes  —  which  make  economies  under  the  pressure  of  stern 
necessity,  but  whose  breadwinner's  strength  has  to  be  renewed  from 
day  to  day  —  as  affording  usually  the  best  practical  test  as  to  the 
suitable  regimen.  When  once  the  basic  wage  has  been  fixed,  on  the 
best  materials  at  command,  the  Court  must  jealouslj^  guard  against 
its  curtailment.  No  one  wants,  surely,  that  a  living  wage  should  be 
fixed  which  would  compel  the  wage-earners  to  substitute  a  regimen 
which  is  physiologically  inferior,  to  adopt  a  lower  standard  of  living. 
It  is  not  too  much  to  say  that  the  future  of  the  nation  is  involved  in 
this  matter  —  the  proper  rearing  of  the  children.  The  main  impulse 
in  the  movement  for  better  wages  comes  from  the  wonderful  family 
instinct,  the  desire  of  parents  to  build  up  sound,  sane,  and  well- 
nourished  children  —  to 

"Keep  the  young  generations  in  hail 
And  bequeath  them  no  tumbled  house." 

Much  could  be  said  on  the  subject,  but  I  feel  that  I  should  be  going 
beyond  the  proper  restraints  of  a  judicial  pronouncement.  But  the 
system  which  this  Court  has  adopted  for  ascertaining  the  changes 
in  the  cost  of  living  may  be  quite  right,  and  yet  the  original  basic 
wage  fixed  in  1907  for  Melbourne  may  be  quite  wrong.  It  is  always 
open  to  parties  to  show  that  it  is  wrong,  or  to  show  what  the  true 
cost  of  living  is  at  the  time  of  each  arbitration.  I  have  never  adopted 
the  practice  of  letting  the  basic  wage  change  automatically  accord- 
ing to  the  Statistician's  tables  as  to  changes  in  purchasing  power  of 
money.  I  treat  the  finding  of  1907  as  tentative  only,  as  lieing  only 
-prima  facie  right,  and  the  Statistician's  tables  as  being  only  prima 
Jade  evidence.  The  subject  is  too  novel,  too  difficult,  too  formidable 
in  all  its  consequences,  for  the  Court  to  make  that  finding  of  1907  a 
fundamental  dogma.  In  this  case  the  finding  has  been  attacked, 
principally  on  the  ground  that  the  average  number  of  children  (de- 
pendent and  under  fourteen)  per  family  is  two,  and  not  three  as 
assumed  (so  it  is  said)  in  the  Harvester  case.  But  if  my  judgment 
in  the  Harvester  case,  2  Com.  Arb.  Rep.  6,  be  examined,  it  will  be 
seen  that  I  did  not  attempt  to  lay  down  the  average  of  three  as  being 
the  actual  average.     I  said  "Taking  the  rent  at  Is.,  the  necessary 


SECT.  II]  AUSTRALIAN  INDUSTRIAL  COURT  895 

average  weekly  expenditure  for  a  labourer's  home  of  about  five  per- 
sons would  seem  to  be  about  £1  12s.  5(i."  (that  is  for  rent,  groceries, 
bread,  meat,  milk,  fuel,  vegetables,  and  fruit — nothing  else).  I 
took  the  family  of  "about  five"  persons  as  a  fair  type;  just  as  Pro- 
fessor Bowley,  I  find,  in  his  recent  work  on  the  Measurement  of 
Social  Phenomena  (p.  151),  takes  a  family  of  six  (four  children)  as 
a  fair  type;  and  as  Professor  Ryan  in  his  book  A  Living  Wage  (1906) 
took  a  family  of  six  or  seven  as  a  fair  type.  In  Richards  on  The  Cost 
of  Living  (1901)  I  find  a  family  consisting  of  father,  mother  and  three 
children  under  the  earning  age  spoken  of  as  "the  typical  family  of 
the  economist."  The  same  number  is  taken  by  Chapin  in  his  New 
York  studies,  and  by  Kennedy  in  his  studies  of  the  Chicago  Stock- 
yards District.  In  framing  the  dietary  scale  for  families  in  1904, 
the  British  Board  of  Trade  took  as  its  type  families  of  two  adults 
and  three  or  four  children.  The  precise  number  to  be  taken  is  not 
so  very  important,  as  it  seems  that  increasing  family  size  is  ac- 
companied by  increase  in  food  expenditure  and  decreasing  rent 
expenditure  {EngeVs  Law:  Nearing,  Financing  the  Wage-Earner's 
Family,  pp.  50-51).  To  meet  the  most  urgent  need —  the  need  for 
food  —  the  poor  have  to  stint  their  families  in  other  necessaries.  I 
had  no  evidence  on  the  subject  of  the  actual  average;  and,  as  it 
would  be  absurd  to  make  the  minimum  wage  depend  on  the  number 
of  persons  in  each  employee's  family,  as  it  would  also  handicap  the 
man  with  many  children  in  seeking  employment,  I  thought  that  a 
family  of  "about  five"  might  fairly  be  taken  as  the  kind  of  family 
to  be  brought  into  the  calculations.  Even  if  the  most  scrupulous 
average  adjusters  were  to  bring  out  the  actual  average  for  the  work- 
ing classes  at  the  best  wage-earning  period  (say  25  to  50)  at  two  or 
a  fraction  over  two  children,  or  four  or  a  fraction  under  four,  my 
calculation  for  the  purpose  of  finding  a  minimum  family  wage, 
would  not  be  generally  regarded  as  unreasonable.  There  are  even 
grave  social  facts  which  to  some  minds  might  justify  the  fixing  of 
a  family  wage  on  a  more  liberal  hypothesis  as  to  numbers.  As  the 
President  of  the  South  Australian  Court  (Professor  Brown)  says, 
in  his  recent  judgment,  "If  the  living  wage  is  put  at  a  very  low  figure, 
a  premium  is  put  on  celibacy,  and  on  a  low  birth  rate.  .  .  .  the 
coming  of  a  baby  must  at  times  assume  the  form  of  a  calamity"; 
but  further  discussion  of  this  subject  might  lead  me  beyond  my 
proper  functions.  But  if  we  should  endeavour  to  ascertain  what 
is  the  actual  existing  average,  what  do  we  find?  Out  of  200  families 
the  subject  of  careful  investigation  in  New  York  (More,  Wage- 
earners'  Budgets),  there  were  40  with  only  two  dependent  children; 
39  families  with  three;  36  families  with  four;  22  families  with  five; 
20  families  with  six;  18  famihes  with  more  than  six;  25  famihes 
with  less  than  two.  That  is  to  say,  of  200  families,  135  had  three 
children  or  more  and  only  65  had  less  than  three.  The  average  size  of 
all  the  families  in  the  groups  was  5.6  (including  the  two  parents).  .  .  . 


896  COMPULSORY  ARBITRATION  [CHAP.  XIX 

I  feel  strongly  that  our  problem  does  not  turn  on  the  actual  average 
number  of  dependent  children  per  family  —  even  if  the  average  is 
confined  to  wage-earners'  families,  and  at  the  best  wage-earning 
period.  The  problem  is  not  to  find  any  existing  needle  in  an  exist- 
ing haystack,  but  to  find  what  sum  can  be  most  reasonably  laid 
down,  in  the  circumstances  of  the  time,  as  the  foundation  or  basic, 
wage  —  a  wage  below  which  employers  ought  to  be  forbidden  by 
the  State  to  employ  its  citizens  who  are  labourers.  I  can  only  say 
that  I  see  no  sufficient  reason  for  departing  from  the  hypothetical 
case  of  a  family  of  "about  five"  for  the  purpose  of  fixing  the  basic 
wage. 

The  result  is  that,  in  the  absence  of  any  better  evidence,  I  ought 
to  treat  the  cost  of  living  for  these  wage-earners,  as  having  increased 
in  Melbourne,  since  1907,  in  the  proportions  shown  by  the  Statisti- 
cian's tables  (see  Report  No.  6,  44);  that  is  to  say  as  17s.  6d.:  25s. 
6d.  The  latter  figures  refer  to  the  mean  for  the  whole  year  1915. 
It  is  true  that  the  figures  are  still  higher  for  the  present  year  1916, 
so  far  as  it  has  gone;  but  I  do  not  think  it  expedient  to  act  on  the 
figiu-es  of  the  latest  fraction  of  a  year.  If,  then,  42s.  was  the  proper 
basic  wage  in  1907,  the  proper  basic  wage  now  should  be  fully  £3 
per  week;  and  I  shall  award  accordingly.  The  figures  for  1915  are 
substantially  the  same  for  Adelaide. 

But  it  must  be  clearly  understood  that  this  is  an  abnormal  mini- 
mum for  an  abnormal  time ;  and  that  as  soon  as  there  is  a  substantial 
fall  in  prices,  a  marked  reversion  to  normal  conditions  as  before  the 
war,  the  basic  wage  prescribed  by  this  award  will  have  to  be  re- 
duced. After  all,  what  the  workers  want  is  not  the  money,  but  the 
food  and  other  necessary  commodities;  and  if  these  can  be  secured 
with  less  money,  a  lower  minimum  wage  may  safely  be  prescribed. 

SLAUGHTERMEN —  ABATTOIRS 

At  present,  the  Wages  Board  minimum  for  slaughterers  in  abat- 
toirs in  Melbourne  is  £4  per  week;  in  Adelaide  £4  to  £4  5s.  varying 
for  beef  (highest)  pork,  mutton  (lowest).  I  have  already  fixed  the 
minimum  for  labourers  at  the  amount  claimed  —  £3  per  week;  and 
the  (luestion  is,  how  much  more  should  be  the  minimum  for  slaughter- 
men? As  usual,  the  Wages  Boards  determinations,  made  without 
any  coordinating  authority,  speak  with  conflicting  voices.  Some- 
times, in  Melbourne,  the  margin  for  the  slaughtermen  has  been  15s., 
sometimes  20.s.;  in  Adelaide  in  1907,  13.s.  Gd.;  in  New  Zealand, 
1911,  20s.  (50s.  V.  70s.).  In  Adelaide,  1907,  the  labourer  got  39s., 
and  the  slaughtermen  52s.  6d.  This  would  seem  to  make  the  slaugh- 
terman's wage  nearly  81s.  when  the  labourer  is  to  get  60s.  In  1911, 
the  labourer  got  45s.,  and  the  slaughterman  60s.  This  would  point 
to  80s.  for  the  slaughternum  now.  But  if  in  Melbourne  when  la- 
bourers got  35s.  per  week,  slaughterers  should  get  50s.,  it  would 


SECT.  II]  AUSTRALIAN   INDUSTRIAL  COURT  897 

seem  at  first  sight  that  when  labourers  get  60.s.,  slaughterers  should 
get  85.S.  9d.  If,  when  labourers  get  50s.,  slaughterers  get  70s.,  it 
would  seem  that  when  labourers  get  GO.s.,  slaughterers  should  get 
84s.  But  these  computations  are  made  on  the  assumption  that  the 
abnormal  increase  in  the  cost  of  living,  due  to  the  war,  the  drought, 
scarcity  of  shipping,  etc.,  should  be  reflected  in  the  wage  for  skill, 
etc.,  as  well  as  in  the  living  or  basic  wage.  In  the  recent  cases  of  the 
Merchant  Service  Guild,  and  of  the  Broken  Hill  companies,  I  re- 
fused to  increase  the  secondary  wage  —  the  wage  for  skill,  etc.  — 
by  reason  of  the  increase  in  the  cost  of  living;  I  simply  added  to  the 
increased  basic  wages  the  old  margin  between  the  labourer  and  the 
skilled  man.  This  course  is  not  ideally  just  in  every  respect;  for 
the  increase  in  the  cost  of  living  affects  the  additional  commodities 
which  convention  and  social  habits  dictate  for  the  skilled  worker,  as 
well  as  the  commodities  necessary  for  the  labourer  and  his  family. 
But  we  are  dealing  with  abnormal  times,  and  exceptional  conditions; 
and  although,  as  I  have  said,  it  is  necessary  to  secure  to  the  labourer 
sufficient  wages  wherewith  to  keep  himself  and  his  family  in  healthy 
sufficiency,  it  is  by  no  means  so  imperatively  necessary  to  secure 
to  the  skilled  worker  to  the  full  extent  all  the  other  commodities 
to  which  he  has  been  accustomed.  It  is  not  unreasonable,  surely, 
that  the  curtailment  of  resources  which  is  recognised  as  common  in 
most  —  certainly  not  all  —  of  middle  class  circles  should,  to  some 
extent,  be  reflected  in  an  award  as  to  the  secondary  wage  during  the 
present  emergency.  If  economy  is  necessary  it  would  be  well,  in 
the  public  interest,  that  it  should  begin  with  people  of  large  incomes, 
in  their  superfluities;  but  it  may  also  be  reasonably  applied,  to  some 
extent,  to  the  expenditure  which  is  based  on  the  skilled  wage,  the 
secondary  wage;  it  should  not  be  applied,  except  in  the  very  last 
resort,  to  the  living  wage  of  the  labourer.  It  seems,  in  truth,  as  if 
the  proper  sustenance  of  the  persons  employed  in  production  should 
be  a  first  charge  on  the  product ;  but  that  the  surplus  remuneration  of 
employees  may  be  treated  as  being  more  a  matter  for  compromise 
or  arrangement.  I  am,  therefore,  disposed,  in  this  case,  as  well  as 
in  the  other  recent  cases  which  I  have  mentioned,  to  merely  add  the 
old  margin  to  the  labourer's  wage  in  fixing  the  minimum  for  the 
slaughterer.  But  I  must  do  nothing  to  diminish  the  recognised 
margin  between  the  man  of  skill  and  the  man  without  skill.  It  would 
be  a  fatuous  step,  on  the  part  of  this  Court,  to  lessen  the  induce- 
ment to  learn  a  trade,  to  attain  superior  skill  and  proficiency. 
Not  only  would  it  invite  industrial  discontent  and  unrest  —  and 
industrial  peace,  is  the  objective  of  this  Court;  but  it  would  en- 
courage the  employment  of  men  in  work  for  which  the}'-  are  not 
fully  qualified,  and  foster  the  too  prevalent  tendency  to  be  con- 
tent with  what  is  "good  enough" — to  be  content  with  imperfect 
workmanship.  .  .  . 


898  COMPULSORY  ARBITRATION  [CHAP.  XIX 

I  fix,  therefore,  the  slaughterman's  minimum  wage  at  £4  per 
week  —  which  is  the  present  minimum  in  Melbourne  and  in  Ade- 
laide.^ .  .  . 


BARRIER   BRANCH   OF    THE   AMALGAMATED    MINERS' 
ASSOCIATION  V.  BROKEN  HJLL  PROPRIETARY 

CO.    ET   AL. 

Court  of  Conciliation  and  Arbitration  of  Australia.     1916 

10  Com.  Arb.  Rep.  155 

hours 

HiGGiNS,  J.  .  .  .  The  claim  is  for  44  hours  instead  of  48,  as  the 
maximum  for  a  week's  work;  and  this  claim  is  made  by  all  the  five 
unions.  The  claim  of  the  Federated  Engine-drivers  was  originallj^ 
for  48  hours;  but  it  is  admitted  that,  by  virtue  of  a  subsequent  de- 
mand for  44  hours,  there  is  a  two-State  dispute  between  the  engine- 
drivers  and  the  employers  on  this  subject.  It  is  the  practice  of  this 
Court  to  adhere  to  the  Australian  standard  of  48  hours,  unless  there 
be  some  strong  and  distinctive  reason  for  a  reduction.  As  I  said 
in  the  Builders'  Labourers'  case,  7  C.  A.  R.  210  at  p.  228,  it  is  my 
duty  to  accept  recognised  standards,  not  to  create  them;  and  if  a 
further  general  limitation  of  hours  has  to  be  made,  it  ought  to  be 
made  deliberately  by  the  Legislatures.  Parliament  can  take  all  in- 
dustries into  consideration  before  legislating,  whereas  I  can  only 
take  one  at  a  time,  and  so  far  as  there  is  a  two-State  dispute.  I 
notice  also  that  Powers,  J.,  in  his  recent  award  in  the  Miners'  case, 
9  C.  A.  R.  330,  approves  of  the  principle  of  the  Builders'  Labourers' 
case,  7  C.  A.  R.  210  at  p.  228,  and  has  refused  to  grant  44  hours. 

Is  there,  then,  any  ground  for  exceptional  treatment  of  the  men, 
or  any  of  them,  engaged  in  this  industry  of  mining  (for  lead,  zinc, 
and  silver),  of  milling,  and  of  smelting,  as  to  hours  of  labour?  I 
shall  first  consider  the  question  as  between  these  men  and  other 

*  Accord:  Federated  Gas  Employees'  Industrial  Union  r.  Metropolitan  Gas 
Co.,  11  Com.  Arb.  Rep.  207,  276-280;  so,  in  Australasian  Mo'at  Indu.stry  Em- 
ployees' Union  v.  Hutton,  13  Com.  Arb.  Rep  1.53,  employees  were  divided  into 
four  classes  as  follows: 

Yardmen,  carters,  drivers ba.sic  rate 

Pork  laborers basic  rate  +    3.s.  per  week 

General  a.ssistants basic  rate  -|-  10.s.  per  week 

I^eading  men basic  rate  -|-  17s.  (W.  per  week 

Compare  the  excellent  study  of  the  technique  of  measuring  the  cost  of 
living  by  W.  F.  Ogburn,  Measurement  of  the  Cost  of  Living  and  Wages,  No.  170, 
Annals  of  the  Amer.  Acad,  of  I'olit.  <&  Social  Science  (.January,  1919). 

See  also,  F.  IL  McLeod,  Cost  of  Living  in  (Jreat  Britain,  U.  S.  Monthly  Labor 
Review,  vol.  8,  No.  0  (June,  1919J,  p.  119. 

See  also,  Appendix,  infra. 


SECT.  II]  AUSTRALIAN  INDUSTRIAL   COURT  899 

workers,  and  then  as  between  these  men  and  the  employers  —  tak- 
ing into  account  (amongst  other  things)  the  objections  so  strongly 
urged  by  the  employers  on  the  score  of  national  exigencies  in  this 
time  of  war.    The  first  thing  to  be  observed  is  that  the  underground 
miners,  who  are  paid  by  results  and  not  by  time,  are  the  strongest 
advocates  of  the  reduction  of  hours  to  44.    This  is  significant,  espe- 
cially if  what  the  employers  say  is  correct,  that  to  reduce  the  48 
hours  to  44  means  a  proportionate  reduction  of  output,  a  reduction 
of  one-twelfth.    The  fewer  hours,  the  less  output,  and  the  less  pay. 
The  next  point  is  that  the  work  underground  is  dangerous  —  more 
dangerous  than  in  most  occupations;   and  that  the  work  in  the  lead 
mines  and  in  the  smelters  is  unhealthy.     It  is  due  to  the  managers 
of  these  mines  to  say  that,  so  far  as  I  can  ascertain,  they  adopt  every 
known  contrivance  for  mitigating  heat  by  ventilation,  and  for  laying 
the  dust  by  water,  and  by  regulations  for  insuring  the  safety  of  the 
miners.     But  the  dangers  incident  to  the  occupation  cannot  all  be 
removed,  it  seems.     It  is  pitiable  to  see  fine  men,  in  the  prime  of 
life,  whose  constitutions  have  been  ruined  by  lead  poisoning  in  its 
various  developments.     One  man  told  me  that  he  had  four  attacks 
last  year,  and  his  medical  man  has  forbidden  him  to  work  in  the 
mines  again.     Pneumonia  is  another  deadly  enemy  of  these  men. 
The  statistics  furnished  by  Dr.  Birks,  of  the  Broken  Hill  hospital, 
show  that  when  pneumonia  occurs  it  is  much  more  generally  fatal 
in  the  case  of  men  who  work  underground  than  in  the  case  of  per- 
sons who  do  not  work  underground.     The  violent  changes  of  tem- 
perature in  passing  from  hot  and  muggy  stopes  into  the  surface  air, 
at  a  time  when  the  body  is  fatigued  and  lowered  in  vitality,  dis- 
tinctly tend  to  encourage  such  diseases  in  the  strongest  of  men.    The 
men  who  escape  are  generally  those  who  take  a  "spell"  now  and 
then  from  Broken  Hill.     I  have  evidence  of  rheumatism,  influenza, 
colds,  Bright's  disease;  but  there  is  no  such  direct  connexion  proved 
with  mining  conditions  as  in  the  case  of  pnemiionia.    Tuberculosis 
is  not,  it  seems,  so  common  as  the  result  of  working  in  these  mines 
as  in  quartz  mines;    but  it,  and  other  respiratory  troubles,  are  not 
wanting.     Accidents  are  frequent.     According  to  the  union's  books, 
the  number  of  accidents  for  which  accident  pay  was  allowed  from 
July,  1914  to  the  end  of  1915  —  a  period  when  some  only  of  the 
mines  were  working,  wholly  or  in  part  —  was  1060;    and  there  are 
many  accidents  for  which  accident  pay  is  not  allowed.    During  the 
same  period,  the  fatal  accidents  were  13. 

The  dangers  to  body  and  to  health  are  distinctly  relevant  to  the 
question  of  hours,  because  the  longer  the  time  a  man  is  subjected  to 
the  conditions  underground  the  greater  is  the  risk  that  he  runs; 
just  as  the  longer  the  time  one  is  under  fire,  the  greater  is  the  chance 
of  a  bullet;  and,  as  regards  health,  the  longer  the  hours,  the  greater 
the  fatigue,  and  fatigue  renders  a  man  less  capable  of  resisting  disease, 
gives  him  less  chance  of  throwing  away  from  his  system  any  delete- 


900  COMPULSORY  ARBITRATION  [CHAP.  XIX 

rious  influences.  It  is  my  practice  not  to  increase  wages  because  of 
risk  to  body  or  to  health;  but  such  risk  can  fairly  be  considered  on 
a  question  of  hours.  As  to  this  view,  I  find  a  curious  confirmation 
in  certain  decisions  of  Courts  of  the  United  States.  I  refer  in  partic- 
ular to  the  case  of  Holden  v.  HsLvdy,  169  U.  S.  366.  .  .  . 

I  am  of  opinion,  therefore,  that  the  men  working  underground 
or  in  the  smelters  are  justified  in  asking  for  shorter  hours  than  men 
in  most  occupations.  But  the  companies  say  that  to  substitute  44 
for  48  hours  would  involve  a  decrease  of  output  of  ore  by  at  least 
4-48ths,  or  l-12th;  and  they  urge,  with  much  force,  that  a  decrease 
of  output  of  lead,  at  a  time  when  lead  is  so  much  needed  for  muni- 
tions of  war,  would  be  lamentable.  .  .  .  The  men  assure  me  that 
as  much,  or  nearly  as  much,  will  be  produced  in  the  44  hours,  owing 
to  the  greater  spring  and  efficiency  resulting  from  the  greater  leisure, 
the  greater  access  to  pure  air,  which  the  Saturday  half -holiday  would 
involve.  On  the  balance  of  the  evidence  before  me,  which  is  largely 
conjectural,  I  should  think  that  the  44  hours  would  mean  some  re- 
duction of  output,  given  the  same  number  of  men  and  the  same 
character  of  ground;  but  I  am  not  at  all  satisfied  that  the  reduction 
is  to  be  ascertained  by  mere  arithmetic —  l-12th  reduction  of  hours, 
l-12th  reduction  of  output.  The  extraordinary  results  in  various 
countries  of  shortening  the  working  day,  the  actual  increase  of  out- 
put per  hour  under  conditions  otherwise  similar,  must  prevent  us 
from  dogmatising  on  such  a  subject.^  N.  W.  Senior,  in  1837,  estab- 
lished to  the  satisfaction  of  others  as  well  as  of  himself,  that  profits 
would  be  destroyed  if  the  eleventh  or  even  the  twelfth  hour  of  work 
were  curtailed;  but  he  was  wrong.  The  investigations  of  Professor 
Pieraccini,  of  Florence,  show  that  the  lowest  output  of  a  morning  is 
reached  just  before  the  hour  of  noon  rest;  and  that  in  no  case  does 
the  afternoon  output  equal  the  morning's  output.  A  proprietor  of 
the  Salford  Iron  Works  has  said  that  "the  most  economical  produc- 
tion is  attained  by  employing  men  only  so  long  as  they  are  at  their 
best";  and  he  found  that,  with  shorter  hours,  the  "time  lost  without 
leave"  was  much  reduced.  The  War  Office  reported  in  1905  that 
"no  extra  cost  has  been  incurred  by  the  public  on  account  of  the 
reduction  of  hours,  nor  has  the  output  of  work  been  diminished." 
Sir  Thomas  Oliver,  the  leading  expert  on  industrial  poisoning,  has 
reported  that  "a  change  from  6  to  8-hour  shifts  of  employment  was, 
in  a  Scotch  factory,  found  to  be  the  only  explanation  of  an  outbreak 
of  plumbism  ('  leading  ')  in  works  which  had  hitherto  been  free." 
In  the  Engis  Iron  Works  (Liege),  for  the  reduction  of  zinc  blend, 
and  the  transformation  of  the  liberated  gases  into  sulphuric  acid, 
the  outi)ut  under  a  10-hour  system  was  e(iuallod  by  the  output  in 
7?,  hours;  and  the  overhead  charges  of  roasted  ore  fell  33.33  i^er  cent 
under  the  reduction  of  hours.  According  to  Ahh6,  one  of  the  pro- 
prietors of  the  Zeiss  optical  works,  the  workman  adapts  himself 

'  Coinpiin!  p.  934,  infra.  —  Eu. 


SECT.  II]  AUSTRALIAN  INDUSTRIAL  COURT  901 

automatically  to  the  shortened  day  by  increasing  his  speed  and  his 
effort,  without  noticeably  increasing  his  exertion.  In  the  bituminous 
fields  in  the  United  States,  the  average  output  for  each  man  per 
day,  under  the  10-hour  system,  was  2.9  and  2.72  tons;  whereas  in 
after  years,  under  the  8-hour  system,  the  average  output  ranged 
from  2.98  to  3.09  tons.  This  improvement  in  output  cannot,  it  is 
said,  be  put  down  to  increased  or  improved  machinery.  In  the  final 
report  of  the  United  States  Industrial  Commission,  1902,  it  is  stated: 
"A  reduction  in  hours  has  never  lessened  the  working  people's  ability 
to  compete  in  the  markets  of  the  world.  States  with  shorter  work- 
days actually  manufacture  their  product  at  a  lower  cost  than  States 
with  longer  work-days."  These  facts  have  been  taken  by  me  from 
a  nest  of  interesting  facts  in  Goldmark's  Fatigue  and  Efficiency, 
ch.  5  (New  York,  Survey  Associates  Inc.  1913).  I  shall  embody 
in  the  award  the  undertaking  which  the  Barrier  branch  gives  me 
that  "other  things  being  equal,  its  members  will  produce  as  much  ore 
per  man  per  week  under  the  44-hour  week  as  they  produced  per  man 
per  week  under  the  48-hour  week  from  1st  January,  1914  to  30th 
June,  1914"  (the  six  months  before  the  war).  I  cannot  ask  the  union 
to  strike  out  the  words  ''other  things  being  equal";  for  the  ground 
which  they  are  put  to  work  may  not  be  always  so  prolific  of  ore  as  in 
1914;  but  I  take  the  undertaking  as  given  in  good  faith  by  men  who 
mean  to  keep  their  word.  The  men  of  the  same  union  at  Port  Pirie 
who  work  every  day  in  the  week,  56  hours,  admit  that  a  44-hour 
week  is  impracticable  at  present  in  the  continuous  process  at  the 
smelters,  and,  recognising  that  there  is  a  shortage  of  men  suitable 
for  the  smelters,  have,  without  any  suggestion  or  pressure  from  me, 
voluntarily  offered  to  have  the  boon  of  48  hours  postponed  till  after 
the  war.  This  is  a  noble  gift  to  the  nation  by  men  who  have  not 
even  the  advantage  of  a  seventh  day  rest.  These  men  have  been 
seeking  for  a  six-day  week  for  years.  .  .  . 

I  grant  the  claim  for  44  hours  per  week  for  underground  men. 

The  artisans  and  others  at  Broken  Hill  at  present  work  48  hours 
—  8f  on  five  days,  4^  on  Saturday.  There  is  no  sufficient  reason 
for  excepting  them  from  the  48  hours  standard.  I  have  had  more 
difficulty  as  to  the  men  at  the  mills,  who  at  present  work  the  same 
hours  and  shifts  as  the  miners.  Inasmuch  as  the  underground  men 
as  well  as  the  artisans  are  now  to  get  Saturday  afternoon  off,  I  cannot 
see  that  the  continuance  of  48  hours  in  the  case  of  the  mill  hands 
will  work  well;  but  in  view  of  the  confident  opinion  of  the  managers 
that  it  will  work,  I  do  not  feel  justified  in  extending  to  mill  hands  a 
rule  which  is  based  solely  on  the  unhealthy  and  dangerous  conditions 
of  underground  miners.  .  .  . 

WAGES  —  BROKEN    HILL 

There  can  be  no  doubt  that  an  increase  is  necessary  in  the  mini- 
mum rates  of  wages,  because  of  the  remarkable  rise  in  recent  years 


902  COMPULSORY  ARBITRATION  [CHAP.  XIX 

in  the  cost  of  living.  Most  of  the  existing  industrial  unrest  is  at- 
tributable to  this  cause.  It  is  surely  a  danger-signal  when  the  Com- 
monwealth Statistician  finds  that  the  cost  of  provisions  for  the 
Connnon wealth  as  a  whole,  is  more  than  30  per  cent  greater  in  July, 
1915  than  in  July,  1914,  and  over  34  per  cent  greater  in  March,  1916. 
It  seems  that  the  cost  is  almost  50  per  cent  greater  in  Broken  Hill  in 
July,  1915  than  the  average  cost  in  the  thirty  principal  towns  of  the 
Commonwealth  as  a  whole  in  1912;  but  in  Broken  Hill  prices  have 
always  been  higher  than  in  the  other  centres  of  the  eastern  States. 
In  this  case,  however,  the  evidence  as  to  cost  of  living  on  which  I 
must  act  is  very  defective.  In  1909,  I  fixed  the  minimum  rate  to  be 
paid  to  an  unskilled  labourer  at  Broken  Hill  at  8s.  7^d.  ...  In 
1911,  agreements  were  made  with  the  companies  which  gave  a  min- 
imum of  9s.  6d.  to  the  labourer;  and  an  officer  from  the  Statisti- 
cian's office  estimates  that  from  1912  to  1915  the  cost  of  provisions 
and  rent  at  Broken  Hill  increased  about  17.4  per  cent.  I  need  not 
elaborately  explain  how  this  figure  is  reached.  ...  If  9s.  Qd.  was 
the  proper  basic  wage  in  1912,  the  proper  basic  wage,  taking  17.4 
per  cent  as  the  increase  in  the  cost  of  living,  should  now  be  merely 
lis.  2d.  But,  undoubtedly,  there  was  some  increase  in  the  cost  of 
hving  from  1911  to  1912  in  Broken  Hill  as  well  as  in  the  rest  of  Aus- 
tralia; it  must  have  been  at  the  least  2  or  3  per  cent;  and  if  we  take 
20  per  cent  as  the  total  increase  from  1911-1915,  the  man  who  got 
9s.  Qd.  in  1911,  should  now  get  Is.  lid.  more,  or  lis.  5d.  .  .  .  I 
propose  to  make  the  minimum  wage  for  labourers  at  Broken  Hill 
lis.  3d.  .  .  . 

ARTISANS,  ETC. 

The  minimum  wage  for  those  who  now  get  more  than  the  basic 
wage  —  artisans,  furnacemen,  and  others  —  I  fix,  so  far  as  the  claim 
and  the  circumstances  allow,  by  adding  to  the  new  basic  wage  the 
old  margin  for  skill  or  other  necessary  exceptional  qualities.  In 
the  case  of  furnacemen  at  the  zinc  plant,  I  turn  what  has  been  a 
kind  of  bonus  into  an  essential  part  of  the  wage.  As  in  the  case  of 
the  stokers  in  gasworks,  Federated  Gas  Employees  Industrial  Union 
and  Metropolitan  Gas  Co.,  7  C.  A.  R.  58  at  p.  71,  the  furnaceman, 
facing  such  intense  heat,  must  be  a  man  of  exceptional  physique, 
heart  and  quality;  and  a  margin  of  2s.  per  day  over  the  labourer 
is  by  no  means  excessive.  They  have  to  stand  in  a  temperature 
of  about  130  degrees  Fahrenheit,  facing  a  furnace  of  about  1800  de- 
grees; and,  as  I  said  in  the  Gasworkers  case,  "they  are  entitled  to 
be  paid  extra  for  such  exceptional  bodily  or  other  qualities  as  their 
occupation  necessarily  demands." 

LEADING    HANDS,   P]TC. 

The  agreements  of  1911  provide  for  extra  wages  to  leading  hands, 
gangers,  and  other  men  belonging  to  a  definite  occupation,  who  have 


SECT.  II]  AUSTRALIAN   INDUSTRIAL  COURT  903 

special  responsibilities.  I  do  not  think  it  wise  or  proper  to  fix  a 
minimum  wage  for  these  functions.  All  that  this  Court  can  do  is 
fix  a  minimum  for  distinctive  classes  of  occupations,  and  leave  it  to 
the  employers  to  attract  or  to  reward  men  of  unusual  excellence  or 
usefulness  in  their  several  occupations.  But  the  companies  here 
have  undertaken  to  me  not  to  withdraw  from  existing  employees  the 
margin  of  extra  wages  which  they  now  enjoy  over  their  fellows.'  .  .  . 


WATERSIDE  WORKERS'  FEDERATION  v.  COMMON- 
WEALTH STEAMSHIP  OWNERS  ASSN. 

Court  of  Conciliation  and  Arbitration  of  Australia 

1915 

9  Com.  Arh.  Rep.  293 

HiGGiNS,  J.2  .  .  .  This  is  not  a  mere  action,  such  as  is  tried  in  the 
ordinary  Courts,  for  the  enforcement  of  legal  rights  between  two 
or  three  persons.  .  .  .  The  whole  shipping  industry  of  Australia  is 
directly  interested  in  the  result,  and  seeks  on  all  sides  a  proper  regu- 
lation of  disputed  points  in  relation  to  the  labour  employed  in  load- 
ing and  in  discharging  vessels.  There  are  about  150  employers 
parties  to  this  application,  including  those  concerned  in  oversea 
trading,  Inter-State  trading,  and  trading  within  each  State;  and 
there  are  between  17,000  and  18,000  members  in  the  Union,  with 
famihes  and  dependents.  The  mere  figures  involved  in  the  case  are 
immense;  for  in  1914  the  oversea  trade  alone  of  Australia  amounted 
to  more  than  £141,000,000.  As  I  pointed  out  in  my  judgment  in 
making  my  award,  an  increase  of  Is.  per  working  day  for  even  10,000 
men  means  an  increased  expenditure  of  £156,500  per  annum.  More- 
over, any  stoppage  of  work  at  the  wharfs  affects  most  seriously  the 
producing  and  other  industries  of  the  continent,  as  well  as  its  re- 
markably great  commerce.  .  .  . 

conditions  of  working 

There  are  numerous  claims  in  the  log  for  a  limitation  of  the  dis- 
cretion of  the  employer  —  or,  rather,  of  his  foreman  —  as  to  the 
mode  of  working.  It  is  the  duty  of  the  Court,  of  course,  to  consider 
any  industrial  matter  that  happens  to  be  in  dispute,  and  to  do  its- 
best  to  meet  the  difficulty.  But  in  the  performance  of  this  dut}^  I 
am  very  chary  of  any  interference  with  the  discretion  of  the  em- 
ployer or  his  expert  agents  as  to  management  and  the  use  of  appli- 
ances. No  one  who  presides  in  this  Court  can  fit  himself  to  dictate 
to  employers  in  the  numerous  industries  the  number  of  men  to  be 
employed  for  each  function  in  every  undertaking,  at  all  stages;   or, 

1  Compare  Holden  v.  Hardy,  169  U.  S.  366. 

^  Only  that  part  of  the  opinion  relating  to  certain  conditions  of  working  is 
given.  —  Ed. 


904  COMPULSORY  ARBITRATION       .  [CHAP.  XIX 

as  is  claimed  in  this  case,  to  prescribe  a  maximum  weight  for  each 
shng  of  cargo  mider  all  circumstances.  As  far  as  possible,  I  must 
leave  each  employer  free  to  carry  on  his  business  on  his  own  system 
(see,  e.  g..  Boot  Factories  Case,  4  C.  A.  R.  1,  at  p.  18).  But  this  prin- 
ciple of  the  Court's  action  must  be  qualified  when  it  is  clearly  shown 
that  the  method  of  working  adopted  involves  undue  pressure  on 
human  life,  and  thereby  endangers  industrial  peace.  It  may  be  fit 
and  proper  to  prescribe  a  maximum  weight  for  a  man  to  lift,  or  for 
a  man  to  carry  on  his  back,  or  for  a  man  to  pull  or  push  in  a  truck 
or  in  a  trolley.  It  ought  to  be  possible  to  place  these  matters  of 
weight  on  a  definite  scientific  basis,  regard  being  had  to  the  powers 
of  an  average  man;  but,  unfortunately,  the  parties  have  made  no 
adequate  effort  to  find  such  a  basis,  have  been  content  mainl}^  to 
flood  the  proceedings  with  the  opinions  of  partisans.  At  a  late  period 
of  the  proceedings  Mr.  Beeby  produced  some  scientific  evidence  and 
standard  scientific  works  bearing  on  the  capacity  of  human  labour; 
but  the  figures  given  are  given  rather  with  a  view  to  the  material 
results  that  can  be  achieved  in  a  given  time  rather  than  with  a  view 
of  ascertaining  the  maximum  effort  beyond  which  an  average  man 
cannot  go  at  any  moment  without  physical  injury  or  strain.  It  is 
no  answer  to  a  man  who  complains  of  too  heavy  a  weight  to  tell  him 
that  as  the  weight  is  much  lighter  during  the  rest  of  the  day,  and  as 
he  has  no  weight  on  him  in  the  return  journey,  the  average  weight 
during  the  day  is  not  excessive.  Some  provision  ought  to  be  made 
as  to  weights.  There  are  indications,  supported  by  a  priori  reasoning, 
that  in  their  eagerness  to  get  the  work  done  quickly  and  economically, 
and  to  please  their  employers,  foremen  —  especially  when  they  are 
rewarded  by  bonuses  —  are  apt  at  times  to  put  men  under  heavier 
burdens  than  are  reasonable.  I  have  formed  my  conclusions  as 
well  as  I  can  on  the  materials  before  me;  but  the  conclusions  do 
not  satisfy  my  own  mind,  and  I  want  them  to  be  regarded  as  pro- 
visional and  tentative.  In  bagged  ore  to  be  lifted,  I  prescribe  a 
maximum  of  1  cwt.  —  112  lbs.,  instead  of  100  lbs.  as  claimed  in  the 
log.  For  the  maximum  cargo  on  a  two-wheel  truck,  I  prescri])e 
5  cwt.,  but  in  the  case  of  single  packages  G  cwt.  It  has  to  be  remem- 
bered that  the  weight  of  the  truck  in  itself  is  nearly  2  cwt.  The 
weight  of  a  load  of  clay  in  a  barrow  is  usually  less  than  If  cwt.; 
but  the  barrow  throws  more  weight  on  the  arms  than  the  truck. 
The  "National  Agreement"  of  New  Zealand,  which  applies  to  Wel- 
lington, Auckland,  Lyttelton,  Dunedin,  Timaru,  prescribes  5  cwt. 
During  my  absence  abroad,  the  Board  of  Reference  in  Melbourne 
decided  on  5  cwt.  Captain  Owen,  an  employer,  says  that  0  cwt.  is 
a  "fair  weight"  (speaking  l)v  way  of  litotes),  wh(>n  you  add  the 
weight  of  the  truck.  But,  as  he  and  others  point  out,  nuich  depends 
on  the  condition  and  level  of  the  wharf,  the  distance  to  the  stack, 
etc.  I  fix  this  maxinunn  on  the  assinnj^tion  that  the  wharf  is  rea- 
sona])ly  good  and  level,  and  that  the  distance  is  not  excessive.     In 


SECT.  Ill]       SOUTH  AUSTRALIAN    INDUSTRIAL  COURT  905 

the  case  of  bagged  cargo,  it  is  admitted  by  the  Union  that  greater 
weight  may  be  carried;  and  I  follow,  as  to  the  numV^er  of  bags  of 
each  kind  of  cargo,  the  rule  laid  down  — -  so  far  as  I  understand  its 
meaning  —  in  "Scale's  Award,"  the  New  South  Wales  award  of  the 
transport  group.  No.  18  Board,  gazetted  24th  September,  1913.'  .  .  . 


Section  3.     The  South  Australian  Industrial  Court 

THE  PRINTING  TRADES  CASE 

South  Australian  Industrial  Court.     1918 

2  South  Australian  Industrial  Rep.  (1918-19)  31 

On  the  sixth  day  of  September,  1918,  His  Honor  Mr.  President 
Brown  delivered  the  following  Judgment : "  .  .  . 

the  rates  of  wage  for  women 

In  the  course  of  his  argument  with  respect  to  women  workers.  Sir 
Josiah  Symon,  on  behalf  of  the  employees,  cited  two  principles  formu- 
lated by  Mr.  Justice  Higgins  in  a  brochure  on  A  New  Province  for 
Law  and  Order:  — 

(1)  "The  principle  of  the  living  wage  has  been  applied  to  women, 
but  with  a  difference,  as  women  are  not  usually  legally  responsible  for 
the  maintenance  of  a  family.  A  woman's  minimum  is  based  on  the 
average  cost  of  her  own  living  to  one  who  supports  herself  by  her  own 
exertions.  A  woman  or  girl  with  a  comfortable  home  cannot  be  left 
to  underbid  in  wages  other  women  or  girls  who  are  less  fortunate. 

(2)  "But  in  an  occupation  in  which  men  as  well  as  women  are 
employed,  the  minimum  is  based  on  a  man's  cost  of  living.  If  the 
occupation  is  that  of  a  blacksmith,  the  minimum  is  a  man's  minimum; 
if  the  occupation  is  that  of  a  milliner,  the  minimum  is  a  woman's 
minimum;  in  the  occupation  of  fruit-picking,  as  both  men  and 
women  are  employed,  the  minimum  must  be  a  man's  minimum." 

^  Principles  Underlying  Industrial  Decisions  Evolved  by  the  Austra- 
lian Court:  For  an  excellent  statement  of  principles  evolved  by  the  Australian 
Court,  see  29  Harvard  Law  Rev.  16-22. 

Compare  the  results  reached  along  similar  lines  by  the  United  States  National 
War  Labor  Board  (see  U.  S.  Bureau  of  Labor  Statistics,  Bulletin  No.  287). 
In  the  case  of  Employees  v.  Frick  Co.  et  al.  (decided  July  11,  1918)  it  was  said: 
"The  board  hereby  announces  that  it  has  now  under  consideration  the  matter 
of  the  determination  of  the  living  wage,  which  under  its  principles  must  be  the 
minimum  rate  of  wage  which  will  permit  the  worker  and  his  family  to  subsist  in 
reasonable  health  and  comfort"  (Bulletin  No.  287.  p.  169). 

Compare  also  the  results  reached  by  the  Kansas  Court  of  Industrial  Relations. 
See  cases,  infra. 

2  Only  that  part  of  the  judgment  is  given  relating  to  the  rates  of  wage  for 
women.  —  Ed. 


906  COMPULSORY  ARBITRATION  [CHAP.  XIX 

I  hope  I  may  say  without  presumption  that  there  is  much  that 
might  be  justly  urged  in  support  of  these  principles,  apart  from  the 
authority  which  properly  attaches  to  them  as  declaratory  of  the  policy 
of  the  Commonwealth  Court  of  Conciliation  and  Arbitration.  In 
particular,  their  clearness,  and  the  comparative  ease  of  their  applica- 
tion to  particular  industries,  must  appeal  to  a  Judge  of  an  Industrial 
Court.  But  the  far-reaching  importance  of  the  subject  imposes 
upon  me  the  necessity  of  an  analysis  of  the  principles  with  a  view  to 
considering  the  propriety  of  their  adoption  by  this  Court.  I  defer 
any  remarks  which  may  appear  to  me  pertinent  to  the  first  of  the 
principles  affirmed  by  the  learned  Judge  until  I  come  ^to  deal  with  the 
statutory  definition  of  the  living  wage  as  stated  in  the  South  Aus- 
tralian Industrial  Arbitration  Act  of  1912.  The  second  principle 
suggests  a  partial  recognition  of  the  alluring  doctrine  of  equal  pay  for 
equal  work.  But  I  am  more  inclined  to  regard  it  as  merely  a  rule  of 
expediency  designed  to  protect  men  from  unfair  competition  in  the 
labor  market.  Indeed,  if  we  were  to  accept  the  "equal  pay  for  equal 
work  "  doctrine,  it  is  hard  to  say  why  the  minimum  wage  for  all  un- 
skilled women  workers  should  not  be  the  same,  or  approximately  the 
same,  as  that  for  unskilled  men.  Women,  who  are  unskilled  work- 
ers, may  naturally  ask  why  their  rate  of  wage  should  depend  upon 
the  accident  of  men  happening  to  be  employed  in  the  same  industry. 
Certainly  some  women  today  ask  why  the  wages  of  women  should 
not  be  assessed  from  the  point  of  view  of  effort  expended  irrespective 
of  whether  women  do  or  do  not  compete  with  men  for  emplo>aiient. 
Other  women  take  a  more  definite  stand,  and  urge  the  award  of 
equal  pay  for  equal  work  in  value.  Such  modes  of  assessment,  how- 
ever, have  not  been  generally  adopted  by  Industrial  Courts.  What  is 
the  explanation?  One  answer  is  that,  however  theoretically  desir- 
able, it  is  practically  impossible  for  a  mere  human  being  to  fix  wages 
by  reference  to  the  value  of  work  done.  The  impossibility  is  espe- 
cially apparent  in  cases  of  mental  work,  because  of  its  infinite  variety. 
Milton,  if  I  remember  rightly,  obtained  £5  for  the  manuscript  of 
Paradise  Lost.  It  has  been  said  that  an  American  scientist,  working 
at  a  fixed  salary',  made  among  many  other  discoveries,  one  discovery 
which  increased  the  value  of  the  potato  crop  of  the  United  States  by 
the  amount  of  £2,000,000.  per  annum.  While  the  remunerations 
received  in  the  cases  mentioned  were  obviously  capricious,  and 
suggest  that  the  (juestion  of  value  of  work  done  ought  not  to  be 
wholly  ignored,  it  remains  true  that  an  Industrial  Court,  which 
should  set  out  to  fix  the  minimum  wage  for  imskilled  labor  by  refer- 
ence to  the  value  of  the  work  done,  would  be  soon  lost  in  a  sea  of 
fallacy  and  contradiction.  Even  an  employer  in  a  particular  Vnisiness 
would  be  generally  unable  to  assess  in  terms  of  money  the  values  of 
particular  workers,  though  he  might  be  able  to  say  what  his  total 
wages  bill  ought  to  be  if  his  business  is  to  prove  a  paying  jiroposition. 
As  far  a.s  unskilled  labor  is  concerned,  an  Industrial  Judge  is  naturally 


SECT.  Ill]        SOUTH    AUSTRALIAN    INDUSTRIAL    COURT  907 

driven  to  adopt  the  standard  of  the  needs  of  the  worker  —  a  standard 
which  leads  to  different  results  as  regards  men  and  women.  The 
man,  and  not  the  woman,  is  typically  the  bread-winner  of  a  family.  .  .  . 
I  look  upon  the  maintenance  of  home  life  as  of  supreme  importance 
to  the  community.  I  regard  the  wage  paid  to  the  adult  male  as 
essentially  and  in  substance  a  family  wage.  True,  so  far  as  single 
men  are  concerned,  it  has  long  been  settled  in  this  State  that  the 
minimum  (living)  wage  should  not  be  less  than  that  of  the  married 
man.  In  other  words,  in  discussing  the  needs  of  the  male  worker, 
a  man  with  a  family  to  support  has  been  taken  as  the  basis  of  assess- 
ment. Any  other  conclusion  would  prejudice  the  married  man  in 
search  of  employment,  would  tend  to  produce  sterility  of  the  popu- 
lation, and  would  place  the  Industrial  Court  in  the  invidious  position 
of  fixing  wages  at  a  rate  which  would  make  it  difficult,  if  not  impos- 
sible, for  single  men  to  save  something  for  the  time  when  they  may 
have  the  felicity  to  become  supporters  of  a  family.  Of  course,  some 
men  never  marry,  and,  in  their  case,  the  application  of  the  doctrine 
of  equal  pay  for  equal  work  produces  results  which  might  be  rectified 
by  some  such  device  as  the  bachelor  tax.  But  many  of  the  reasons 
which  apply  in  support  of  the  doctrine  of  equal  pay  for  equal  work 
as  applied  to  men  (whether  married  or  single)  do  not  apply  to  em- 
ployees (male  or  female).  When  women  marry,  they  do  so,  I  will  not 
say  with  the  object,  but  I  may  say  with  the  contemplation,  of  being 
supported.  As  Mr.  Justice  Ctissen  says  —  "The  ordinary  wife  and 
mother  has  fortunately  other  duties  to  perform,  the  value  of  which 
is  not  assessable  by  determination."  (19  Argus  Law  Reports,  p.  147.) 
There  is  another  reason  for  limiting  the  doctrine  of  equal  pay  for 
equal  work  to  men,  and  that  is  the  probability  that  a  larger  propor- 
tion of  single  men  than  of  single  women  have  to  support  parents  or 
other  relatives.  In  the  net  result,  the  abstract  doctrine  of  equal  pay 
for  equal  work,  despite  its  plausibility,  must,  in  a  world  full  of  com- 
plexities and  imperfections,  yield  to  considerations  of  practical  ex- 
pediency. As  I  have  pointed  out,  carried  to  its  logical  conclusion, 
the  doctrine  implies  that  all  women  who  work  for  their  livelihood 
should  be  paid  a  wage  assessed  by  reference  to  the  value  of  the  work 
done,  and  irrespective  of  the  traditional  social  structure  which  im- 
poses on  men  the  duty  of  maintaining  the  home.  "Can  one  justify 
levelling  up  women's  wages  to  men's  in  trades  where  they  both  work, 
while  keeping  them  on  an  altogether  lower  scale  in  wholly  feminine 
trades  of  equivalent  difficulty?"  asks  Eleanor  Rathbone  {Economic 
Journal,  March,  1917,  p.  65).  ...  On  various  grounds  I  am  drawn 
to  the  conclusion  that  Mr.  Justice  Higgins,  in  affirming  equal  pay  to 
men  and  women  in  "ambiguous  occupations,"  was  not  influenced  by 
the  abstract  doctrine  which  I  have  been  considering,  but  by  the 
practical  difficulty  of  preventing  men  from  being  competed  out  of 
employment  by  cheap  female  labor.  Indeed,  the  ardent  advocate 
of  "equal  pay  for  equal  work"  as  a  supreme  and  axiomatic  principle 


908  COMPULSORY  ARBITRATION  [CHAP.  XIX 

for  determining  the  rates  of  wage  for  women,  ignores  the  just  claims 
of  the  "indnMrial  inother.'"  Of  course,  the  State  might  endow  the 
married  woman;  but  the  propriety  of  doing  so  is  not  for  this  Court 
to  consider.  I  have  to  take  the  present  social  order  as  I  find  it,  and 
make  the  best  of  it. 

No  one  would  deny  the  need  for  recognising  the  danger  of  men 
being  competed  out  of  employment  by  cheap  female  labor.  Few 
would  deny  that  women  workers,  whether  living  at  home  or  not, 
should  receive  at  least  a  living  wage  for  vmskilled  labor,  and  should 
also  receive  a  secondary  wage  for  skill,  etc.  But  even  assuming  all 
this,  the  practical  difficulties  which  confront  me  when  I  am  asked  to 
apply  the  second  principle  of  Mr.  Justice  Higgins  to  the  facts  of 
industrial  life  are  so  disturbing  as  to  call  for  a  brief  statement.  The 
first  of  these  difficulties  is  that  the  principle  involves  an  embarrass- 
ing dilemma.  In  industries  in  which  both  men  and  women  find  em- 
ployment, women  either  are  or  are  not  typically  on  the  same  level  as 
men  as  far  as  usefulness  to  the  employer  is  concerned.  If  they  are 
not  typically  equal  to  men,  then,  under  normal  conditions  of  the 
labor  market,  they  are  liable  to  be  excluded  from  emplojaiients  for 
which  they  may  be  well  adapted.  In  other  words,  under  the  con- 
ditions suggested,  an  Industrial  Court,  while  purporting  to  confer  a 
boon  on  women,  would  be  really  excluding  them  from  at  least  some 
avenues  of  employment.  On  the  other  hand,  in  industries  where  men 
and  women  are  approximately  of  equal  value,  then,  as  a  result  of  the 
general  increase  in  the  wages  bill  of  the  community,  the  purchasing 
value  of  the  wages  of  men  would  be  affected.  The  wages  bill  of  the 
community,  as  well  as  any  surplus  for  profits,  comes  out  of  prices. 
A  high  rate  of  wage  to  women,  in  proportion  to  the  number  of  women 
affected,  means  that  the  bread-winner  with  a  wife  and  family  to  sup- 
port will  contribute  as  a  consumer,  in  order  to  maintain  women 
workers  in  a  far  higher  standard  of  living  than  is  possible  for  the  man 
himself,  his  wife,  and  children.  The  second  principle  of  INIr.  Justice 
Higgins  thus  involves  an  embarrassing  dilemma.  I  fear  that  the 
existence  of  the  dilemma  is  seldom  realised.  Men  and  women  em- 
ployees alike  are  apt  to  be  obsessed  by  the  doctrine  of  equal  pay  for 
equal  work,  without  considering  ultimato  consequences.  A  cynic 
might  suggest  that  the  men  are  so  confident  of  holding  their  own  that 
they  believe  that  the  fixation  of  equal  pay  would  practically  ensure 
to  men  a  monopoly  of  the  employments  in  which  they  happen  to  be 
engaged.  Undoubtedly,  however,  many  men  are  actuated  by  more 
chivalrous  motives.  But  the  motives,  liad  or  good,  must  ])e  brought 
under  the  cold  light  of  reason.  .  .  . 

Two  things  seem  reasonably  certain.  The  first  is  that  although 
there  is  not  likely  to  be  in  Australia  such  an  increase  in  the  em- 
ployment of  women  as  in  many  other  parts  of  the  world,  there 
will  nevertheless  be  a  substantial  increase.  The  tendency  in  this 
direction  before  the  war  has  been  accentuated  by  the  war,  and  will 


SECT.  Ill]       SOUTH    AUSTRALIAN    INDUSTRIAL   COURT  909 

very  possibly  be  still  more  accentuated  by  the  conditions  following; 
the  conclusion  of  the  war.  The  second  thing  is  that  the  material 
well-being  of  the  workers  as  a  class  depends  as  much  on  low  prices 
as  upon  high  wages  {Carpenters  and  Joiners^  Case,  1916-18,  I.  R., 
pp.  172-178).  I  do  not  mean  that  wages  should  not  increase;  I  be- 
lieve and  hope  that  they  will  increase.  But  so  far  as  the  workers 
are  concerned,  what  they  really  want  is  an  increase  in  earning  capac- 
ity, not  merely  an  increase  in  nominal  wages.  In  several  cases  be- 
fore this  Court  I  have  declared  my  reluctance  to  increase  wages 
unless  such  increase  could  be  taken  out  of  profits.  The  principle 
affiiTned  by  Mr.  Justice  Higgins  would  threaten  a  wholesale  "passing 
on  "  in  the  prices  of  commodities,  and  so  a  reduction  in  the  purchasing 
power  of  nominal  wages. 

In  the  second  place,  the  principle  of  Mr.  Justice  Higgins,  if  gener- 
ally applied,  would  act  in  practice  with  a  strange  caprice.  The 
learned  Judge  takes  the  case  of  fruit-picking.  In  this,  as  in  most 
unskilled  industries,  what  would  probably  happen  would  be  that,  if 
men  were  available,  they  would  be  employed,  whilst,  if  they  did  not 
happen  to  be  available,  women  would  be  employed,  and  would  be 
paid  at  rates  of  wage  out  of  all  proportion  to  their  needs  —  the  recog- 
nised standard  of  assessment  —  and  out  of  all  proportion  to  wages 
received  by  women  who  are  engaged  in  other  occupations  which 
happen  to  be  purely  women's  work,  and  are  of  certainly  equal  value 
from  the  point  of  view  of  the  community. 

In  the  third  place,  with  reference  to  the  broader  social  aspects  of 
the  question  now  under  consideration,  the  trend  of  Mr.  Justice  Hig- 
gins's  second  principle,  if  put  into  general  practice,  would  be  to  at- 
tract many  women  from  the  occupations  which  fit  them  for  the  life 
duties  which  the  majority  are  called  upon  to  fulfil,  into  occupations 
which  have  no  value  as  a  training  for  the  performance  of  such  duties. 
Closely  associated  with  this  aspect  of  the  question,  is  the  problem  of 
domestic  aid.  The  problem  has  become  increasingly  important  in 
Australia,  among  other  reasons,  on  account  of  the  vital  importance 
to  the  community  of  maintaining  the  rate  of  increase  of  the  popula- 
tion. The  solution  of  the  problem  would  be  made  increasingly 
difficult  by  awarding  substantially  higher  rates  for  women  workers 
in  factories  than  are  now  current.  No  doubt  there  might  be  a  marked 
improvement  in  the  conditions  of  domestic  service  which  have 
hitherto  prevailed;  but  taking  facts  as  they  are,  there  is  the  utmost 
difficulty,  certainly  amongst  the  working  classes  and  persons  of 
moderate  incomes,  in  obtaining  domestic  help  adequate  to  the  up- 
bringing of  a  family  of  even  moderate  size.  Hence,  in  part,  the 
growing  sterility  of  the  population  —  a  serious  menace  to  the  future 
of  Australia.  If  today,  so  many  women  would  rather  work  in  fac- 
tories at  low  wages  than  assist  in  domestic  service,  what  would 
happen  if  the  wage  for  women  in  factories  were  doubled?  It  is  an 
unpopular  thing  to  state  nowadays,  but  it  is  nevertheless  broadly 


910  COMPULSORY  ARBITRATION  [CHAP.  XIX 

true,  that  woman's  true  apprenticeship  for  her  future  career  is  to  be 
found,  not  in  the  workshop  or  the  salesroom,  but  in  some  form  of 
training  or  apprenticeship  directly  related  to  wifehood  and  mother- 
hood. I  am  fully  aware  that  there  are  exceptional  cases  of  women 
who  do  not  marry,  but  an  Industrial  Court  has  to  determine  its  action 
by  reference  to  types  rather  than  exceptions.  The  real  question  at 
issue,  as  regards  women  who  do  not  marry,  is  not  whether  they  shall 
not  be  paid  a  living  wage  with  adequate  margins  for  skill,  etc.,  but 
whether  they  shall  be  paid  rates  of  wages  avowedly  assessed  by 
reference  to  the  needs  of  the  bread-winner  of  a  family. 

In  the  fourth  place,  it  might  be  urged  —  and  indeed  I  suggested  so 
much  for  the  consideration  of  the  parties  in  the  course  of  the  hearing 
—  that  the  apparent  object  of  awarding  men  and  women  equal 
minimum  rates,  namely,  the  protection  of  men  from  unemployment, 
might  be  met,  at  any  rate  in  many  industries,  by  limiting  the  pro- 
portion of  women  to  men  employed  in  the  particular  industry  or 
grade  thereof. 

It  is  easier  to  find  objections  to  a  general  principle  relating  to  the 
rate  of  wage  for  women  engaged  in  ambiguous  occupations,  than  to 
propose  any  alternative  scheme  which  would  prove  workable  in 
practice,  and,  at  the  same  time,  reasonable  and  just  in  its  operation 
alike  to  employers,  to  men  and  women  employees,  and  to  the  com- 
munity. In  point  of  fact  it  is  impossible  to  formulate  a  principle 
applicable  in  the  case  of  ambiguous  occupations  to  which  some  ob- 
jections, more  or  less  plausible,  could  not  be  urged.  Nevertheless, 
with  regard  to  any  principle,  the  objections  to  it  must  be  considered 
in  their  cumulative  force.  The  principle  formulated  by  Mr.  Justice 
Higgins  appears  to  me  to  be  open  to  objections  so  weighty  that  I  feel 
it  imperative  to  consider  whether  it  would  not  be  possible  to  formu- 
late any  alternative  principle  or  principles.  I  shall  begin  with  a 
statement  of  the  more  important  factors  of  the  problem  to  be  solved. 
Mtiny  of  these  factors  are  in  the  nature  of  commonplaces,  generally 
admitted  as  a  matter  of  form,  though  apt  to  be  lost  sight  of  by  in- 
dividuals who  are  more  anxious  to  justify  cherished  preconceptions 
than  to  arrive  at  just  conclusions. 

(1)  The  Rights  of  Women.  —  (a)  To  freedom  in  the  choice  of  career, 
and  (6)  to  a  fair  wage.  Neither  right,  as  I  shall  indicate  later,  can  be 
justly  interpreted  without  reference  to  the  good  of  the  community. 
What  I  wish  to  emphasize  here  is  that  women  should  not  be  treated 
as  a  mere  means  to  an  end;  they  are  an  end  in  themselves.  Inci- 
dentally, I  may  remark  that  freedom  in  the  choice  of  careers  includes 
freedom  to  marry,  and  a  right  to  support  when  married.  The  time 
may  not  have  arrived  when  full  legislative,  administrative,  or  judicial 
recognition  can  be  given  to  the  claims  of  "the  industrial  motlier." 
But  Industrial  Courts  have  given  some  recognition  to  the  claims 
when  assessing  the  living  wage  for  men. 

(2)  The  Traditional  Organisation  of  Society.  —  According  to  this 


SECT.  Ill]        SOUTH    AUSTRALIAN    INDUSTRIAL    COURT  911 

organisation,  man  is,  or  should  be,  the  bread-winner.  In  other  coun- 
tries I  have  seen  women,  who  should  be  engaged  in  domestic  duties, 
earning  the  family  income,  while  their  husbands  have  been  spending 
most  of  their  time  in  indolence.  Happily  this  is  abnormal.  Speaking 
generally,  even  as  regards  single  women  and  single  men,  established 
tradition  and  morality  impose  upon  the  man  and  not  the  woman,  the 
duty  to  save  up  for  the  initial  expense  of  the  home.  .  .  . 

(3)  That  an  Industrial  Court  must  take  a  broad  view,  dealing  with 
types  or  classes  rather  than  individuals,  has  been  so  generally  recog- 
nised that  I  would  hesitate  to  refer  to  the  matter  but  for  the  fact  that 
I  have  to  address  myself  to  a  psychology  which  is,  according  to  com- 
mon repute,  generally  disposed  to  argue  from  the  concrete  instance. 
Even  learned  counsel  in  the  present  proceedings  did  not  escape  the 
trap  into  which  I  should  be  led  if  I  ignored  the  duty  to  deal  with 
classes  rather  than  individuals.  .  .  . 

(4)  The  comparative  efficiency  of  women  and  men  varies  in  different 
occupations.  .  .  .  "There  are,"  says  Miss  Rathbone,  "in  the  eyes 
of  most  employers  certain  standing  disadvantages  of  women's  labor 
which  have  to  be  reckoned  with.  There  is  the  fact  that  the  law  will 
not  allow  him  to  work  her  at  night  nor  for  overtime,  except  under 
rigid  restrictions;  that  her  liability  to  sickness  (in  most  trades)  is 
rather  greater;  that  he  cannot  put  her  to  lift  heavy  weights  or  to  do 
odd  jobs;  that  he  cannot  comfortably  swear  at  her  if  she  is  stupid; 
that,  in  short,  she  is  a  woman,  and  most  employers,  being  male, 
have  a  '  club  '  instinct  which  makes  them  feel  more  at  ease  with  an 
undiluted  male  staff.  Above  all,  there  is  the  overwhelming  disad- 
vantage, if  the  occupation  is  a  skilled  one,  that  she  is  liable  to  go  off 
and  get  married  just  as  she  is  beginning  to  be  of  some  use"  {The 
Economic  Journal,  March,  1917,  p.  59).  On  the  whole,  I  incline  to 
the  opinion  that  in  most  occupations  women  are  potentially  less 
efficient  than  men.  .  .  . 

(5)  I  have  frequently  drawn  attention,  in  previous  cases,  to  the 
duty  incumbent  upon  a  State  President  to  avoid  regulations  which 
would  unduly  hamper  the  industrial  progress  of  the  State.  ...  I 
feel  justified  in  assuming  that  every  loyal  citizen  of  South  Australia 
will  agree  that  the  Industrial  Court  of  this  State  should  keep  steadily 
in  view  the  object  of  conserving  the  industries  of  this  State.  Otherwise, 
while  seeming  to  help  the  employees,  the  Court  will  really  be  de- 
priving them  of  employment.  .  .  . 

(6)  Closely  allied  with  the  question  of  the  conservation  of  indus- 
try, is  the  question  of  how  to  regulate  industry  so  as  to  secure  the 
maximum  production  at  the  minimum  costs  of  production.  This  latter 
question  can  scarcely  be  overlooked  by  Industrial  Courts,  even  in 
normal  times.  But  the  times  are  not  normal.  "The  world's  poverty 
as  a  result  of  the  war,"  said  Mr.  Parsons,  "is  so  great  that  the  world's 
work  must  be  done  at  the  lowest  cost  consistent  with  securing  to  the 
worker  his  or  her  reasonable  needs,  and  a  just  secondary  wage."    Of 


912  COMPULSORY  ARBITRATION  [CHAP.  XIX 

course  the  desired  result  can  only  be  attained  by  the  cooperation  of 
many  agencies,  including  public  and  private.  But  it  suggests,  inter 
alia,  industrial  regulation  along  lines  which  would  tend  to  promote 
the  utilisation  of  all  the  available  forces  of  the  community  in  the 
work  of  production.  Even  before  the  war,  the  tendency  of  social 
progress  was  towards  the  elimination  of  the  "social  drone."  The 
war  has  accentuated  this  tendency.  .  .  . 

Sound  national  economy  embraces  the  recognition  of  the  need 
for  securing  such  a  return  for  work,  whether  mental  or  physical, 
as  will  maintain  the  worker  in  health  and  efficiency,  and  stimulate 
his  or  her  ambition.  The  realisation  of  the  fact,  in  its  bearing  upon 
maximum  production  at  lowest  cost  of  production,  leads  to  the  con- 
clusion that  lowest  cost  of  production  should  be  sought  for,  less  in 
low  rates  of  wages,  than  in  increased  skill  in  the  management,  and  in 
increased  efficiency  of  the  worker.  But,  whatever  the  rates  of  w^age 
may  be,  a  relatively  low  rate  to  women  as  compared  with  men  is  not 
necessarily  open  to  the  objection  that  it  subsidises  the  employer  at 
the  expense  of  the  employee.  No  doubt,  especially  in  older  lands,  this 
objection  is  occasionally,  and  in  some  industries,  justified.  But  in 
proportion  as  the  price  of  commodities  is  controlled  by  active  com- 
petition or  by  the  intelligent  supervision  of  public  authorities,  the 
subsidy,  if  so  it  may  be  called,  goes,  not  to  the  employers,  but  to  the 
community. 

(7)  Closely  related  to  the  matters  just  considered,  is  the  prevention 
of  unemployment  either  of  men  or  women.  ...  So  far  as  men  are 
concerned,  there  is  the  obvious  danger  of  their  being  driven  out  of 
employment  by  women  working  at  a  lower  wage.  On  the  other 
hand,  so  far  as  women  are  concerned,  there  is  the  obvious  danger  of 
excluding  them  from  employments  for  which  they  are  quite  adapted, 
but  not  quite  so  efficient,  as  men,  by  fixing  the  same  minimum  rates 
for  both  men  and  women.  As  a  woman  writer  already  quoted  re- 
marks:—  "The  attempt  to  establish  strict  arithmetical  equality 
between  them  goes  further  than  is  necessary  to  protect  the  men 
against  unfair  competition,  and  really  weights  the  scale  against  the 
women."  .  .  , 

(8)  I  have  frequently  pointed  out  the  difference  between  the  con- 
cept of  justice  in  the  Industrial  Court  and  Civil  Courts  respectively. 
In  Civil  Courts,  the  Judge  normally  concentrates  his  thought  upon 
the  question  of  effecting  "justice  between  the  parties."  In  Industrial 
('ourts,  the  Judge  is  impelled  to  take  a  wider  range;  he  has  to  con- 
sider how  a  particular  award  may  affect  the  parties  in  the  particular 
influstry,  the  class  interests  of  employers  and  employees  at  large, 
and  the  welfare  of  the  community.  What  I  wish  to  stress  here  is 
that  the  good  of  the  community  is  the  supreme  factor  in  the  formulation 
of  principles  by  an  Industrial  Court.  .  .  .  One  particular  applica- 
tion of  the  formula  that  the  good  of  the  community  is  sovereign^is 
found  in  tlic  claims  c)f  tjiat  >  in  represented  party  in  proceedings  be- 


SECT.  Ill]       SOUTH   AUSTRALIAN    INDUSTRIAL   COURT  913 

fore  this  Court  —  the  purchaser  of  commodities.  Another  applica- 
tion is  that  so  long  as  men  have  "families  to  keep,"  and  so  long  as 
there  is  no  State  endowment  of  motherhood,  the  male  employee  is 
entitled  to  an  allowance  by  way  of  extra  wages  in  order  that  he  may 
meet  the  expenses  of  his  home.  The  rate  of  wage  must  include  the 
claims  of  the  "industrial  mother,^'  which,  however  inadequately  recog- 
nised in  the  past,  are  not  less  deserving  of  recognition  than  the  claim  of 
the  unskilled  woman  worker.  .  .  . 

SUMMARY    OF    FACTORS 

I  do  not  pretend  for  a  moment  that  my  enumeration  of  factors  is 
complete;  but  it  indicates  at  once  the  more  important  things  that 
have  to  be  borne  in  mind,  and  at  the  same  time,  the  extreme  difficulty 
of  arriving  at  just  conclusions.  I  wish  particularly  to  emphasize" the 
danger  which  I  am  afraid  is  very  commonly  exemplified  of  being 
obsessed  by  one  or  the  other  of  the  factors,  to  the  exclusion  of  the 
others.  That  is  the  way  to  easy  conclusions;  but  it  is  seldom  the  way 
to  just  conclusions.  The  factors  must  be  viewed  collectively  if  we  are 
to  avoid  the  bogs  into  which  we  would  be  led  if  we  failed  to  observe  a 
just  sense  of  proportion.  I  shall  now  proceed  to  state  the  resulting 
conclusions  to  which  I  personally  am  led  in  the  form  of  principles 
which  I  hope  may  be  of  some  use  to  this  Court  in  future  cases  (as  well 
as  in  the  present) ,  and  to  Wages  Boards  generally.  It  will  be  under- 
stood that  I  am  only  concerned  with  minimum,  not  maximum  rates, 
that  I  speak  of  industries  generally  rather  than  of  any  one  industry, 
and  that  I  make  no  pretence  to  supersede  supply  and  demand  which 
must  necessarily  operate  in  favor  of  the  worker,  according  to  the  state 
of  the  labor  market. 

THE    LIVING  WAGE    FOR   WOMEN 

Two  questions  arise  for  consideration :  —  (a)  Are  women  workers 
entitled  to  a  living  wage?  (b)  If  so,  what  should  be  the  amount?  .  .  . 
The  South  Australian  Industrial  Arbitration  Act  of  1912,  .  .  . 
(sec.  22),  expressly  stipulates  that  the  Court  shall  not  award  less 
than  a  living  wage.  Further,  the  section  defines  the  living  wage 
as  "a  sum  sufficient  for  the  normal  and  reasonable  needs  of  the 
average  employee  living  in  the  locality  where  the  work  under  con- 
sideration is  done  or  to  be  done."  In  this  section  there  is  no  dis- 
crimination as  to  sex.  .  .  . 

If,  then,  we  assume  that  women  are  not  excluded  from  the  benefit 
of  sec.  22  of  the  Industrial  Arbitration  Act  of  1912,  the  question 
arises  as  to  what  that  living  wage  for  women  should  be.  Applying 
the  statutory  definition,  it  might  at  first  appear  that  the  living  wage 
for  women  should  vary  not  merely  according  to  locality,  but  also 
according  to  the  industry  concerned.  If,  for  example,  it  is  shown 
that  all  women  employed  in  a  particular  industry  live  at  home  with 


914  COMPIJLSORY  ARBITRATION  [CHAP.  XIX 

their  parents,  it  is  arguable  that  the  living  wage  should  not  be  as 
high  as  in  an  industry  in  which  all  the  women  live  away  from  home. 
Mr.  Justice  Higgins,  however,  with  reference  to  cases  before  the  Com- 
monwealth Court,  uses  without  qualification  the  words  "A  woman 
or  girl  with  a  comfortable  home  cannot  be  left  to  underbid  in  wages 
other  women  who  are  less  fortunate."  Personally,  I  know  of  no  in- 
dustry in  which  the  fact  that  a  woman  does  or  does  not  live  at  home 
is  a  necessary  qualification  for  her  employment.  The  mere  fact  that 
all  the  women  employed  in  a  particular  industry  live  in  the  homes 
of  their  parents,  would  not  of  itself  prove  a  necessity  for  their  doing 
so,  or,  that  the  custom,  if  so  it  might  be  called,  was  fixed  and  im- 
movable. Other  reasons  enforce  the  argument  to  which  Mi*.  Justice 
Higgins  gives  terse  expression:  —  (1)  WTiile  the  question  of  value  of 
work  done  cannot  be  accepted  as  an  ultimate  basis  for  the  definite 
fixation  of  wages,  it  need  not  be  wholly  ignored.  If  men  receive  for 
unskilled  labor  X/-  per  day,  and  if  Y/-  per  day  be  the  amount  al- 
located to  the  male  worker  on  the  supposition  that  a  man  is  or  may 
become  a  bread-winner  of  a  family,  then  X-Y  is  a  symbol  which 
goes  some  way  to  indicate  what  a  woman  may  claim  a  moral  right 
to  (living  at  home  or  not) .  (2)  The  adult  woman  worker  who  lives  at 
home  with  her  parents  is  under  a  moral  duty  to  contribute  a  share  in 
the  upkeep  of  the  family,  and  an  Industrial  Court  ought  not  to  fix  the 
living  wage  for  a  woman  at  a  figure  which  would  render  the  adequate 
performance  of  this  duty  difficult  or  impossible. 

What,  then,  should  be  the  amount  of  the  living  wage  for  women  in 
the  metropolitan  area?  The  question  is  a  very  difficult  one,  but  a  deci- 
sion upon  it  is  necessary  for  a  determination  of  issues  in  the  present 
case.  Several  witnesses  in  the  course  of  the  hearing  gave  useful 
evidence.  .  .  .  With  all  due  regard  to  the  reasons  which  may  be 
urged  in  justification  of  a  conservative  estimate,  I  am  unable  to  ar- 
rive at  any  other  conclusion  than  that  the  bedrock  living  wage  for 
women  should  be  27s.  6rf.  per  week.  I  refrain  from  giving  precise 
details  as  to  the  way  in  which  this  amount  is  arrived  at.  There  are 
obvious  reasons  for  reticence  on  the  part  of  a  "mere  man"  dealing 
with  a  problem  so  intricate  and  so  delicate.  I  will  only  say  that  my 
conclusion  has  been  arrived  at  after  a  most  careful  analysis  of  avail- 
able sources  of  information,  and  more  especially  the  evidence  sub- 
mitted in  the  course  of  the  present  proceedings.  I  may,  however, 
remark  that  the  evidence  tendered  as  to  board  and  residence  indi- 
cated 15.S.  to  17s.  Qd.  a  week.  I  also  include  the  two  budgets  of  ex- 
penditure prepared  by  women  witnesses,  whom  I  shall  call  Miss  A 
and  Miss  B. 

Exhibit  W 

Statement  of  Miss  "A"  as  to  cost  of  living  other  than  board  and 
lodging:  — 


SECT.  Ill]       SOUTH    AUSTRALIAN    INDUSTRIAL   COURT  915 

£    s.    d. 

4  working  dresses  (material  only),  last  one  j'ear 3    0  0 

2  other  dresses  (materials  only),  last  one  year 4    0  0 

4  pairs  boots,  at  £1,  last  one  year 4    0  0 

Boot  repairs    Oil  0 

3  hats,  at  15.s'.  Qd.,  last  one  year    2    6  6 

5  pairs  stockings,  at  3s.  lid.  pair 0  19  .  7 

2  pairs  gloves,  at  4s.  lid 0    9  8 

Underclothing  (materials  only),  last  one  year 3  10  0 

Overc6at,  last  two  years  (£3  15s.)    1  17  6 

Umbrella  0    9  6 

3  working  overalls,  at  5s.  llrf 0  17  9 

Sundries,  including  corsets  1  10  0 

£23  11  6 

Weekly  average  of  above  items 0    9  0 

Tram  fares  (per  week)    0     1  3 

Union  fees  (per  week)   0    0  3 

Church  contribution  (per  week)    0    0  3 

Amusements  (per  week)   0    0  6 

Weekly  average    £0  11  3 

1  make  my  own  dresses  and  underclothing. 

Exhibit  ID 

Statement  of  Miss  "B"  as  to  cost  of  living  other  than  board  and 
lodging:  — 

£     s.  d. 

4  working  dresses  (materials  only),  last  one  year 3  10  0 

2  other  dresses  (materials  only),  last  one  year   4    0  0 

4  hats  (material  only),  last  one  year 1     2  0 

Underclothes    (materials    only),    2^    doz.    calico,    now 

18s.  6d.  per  doz 2     6  3 

3  pairs  boots  3    3  0 

Repairs    0    9  0 

4  pairs  stockings,  last  one  year   1     2  0 

4  pairs  gloves,  last  one  year 0  10  4 

2  pairs  corsets,  last  one  year    0  19  0 

Sundries  — 

Handkerchiefs,    cotton,    trimmings,    tapes,    ribbons, 

fasteners,  etc 1     0  0 

Overcoat  (material  only),  last  two  years  (£2  5s.)     ....     1     2  6 

Umbrella,  last  one  year 0    9  6 

War  levy  by  lodge,  lOd.  per  qr 0    3  4 

6  Aprons  for  work   0    9  0 

£20    5  11 


916  COMPULSORY  ARBITRATION  '     [CHAP.  XIX 

£  s.  d. 

Weekly  average  of  above  items , 0  7  9 

Tram  fares  (per  week)    0  2  6 

Union  fees  (per  week)   0  0  3 

Lodge  fees  (per  week)  0  0  7 

Church  contribution    0  0  3 

Amusements  0  0  6 

Weeklv  average    £0  11  10 


I  buy  materials  for  all  dresses,  hats,  overcoat,  and  underclothes,  and 
make  them  myself. 

Both  budgets  were  the  subject  of  careful  examination  and  cross- 
examination  by  learned  counsel. 

THE    MINIMUM    WAGE    FOR    WOMEN 

The  minimum  wage  for  women  in  an  industry  or  grade  must  be 
fixed  by  reference  to  circumstances,  conditions,' etc.,  of  that  industry 
or  grade.  It  is  not  necessary  for  me  to  refer  to  the  grounds  upon 
which  this  Court  has  distinguished  between  the  living  and  the  mini- 
mum wage.  I  have  endeavored  to  make  those  grounds  clear  in  pre- 
vious cases.  The  most  obvious  is  skill.  I  may  only  add  here  that  a 
useful  distinction  may  be  drawn  between  the  'primary  minimum 
(applicable  to  the  whole  of  an  industry)  and  the  secondary  minimum 
(applicable  to  the  several  parts  or  grades  of  an  industry).  In  assess- 
ing the  proper  marginal  difference  between  the  living  (or  a  primary 
minimum  wage,  as  the  case  ma^^  be)  and  the  secondary  minimum, 
regard  should  be  paid  to  custom  (ascertainable  by  reference  to  usage 
in  this  State  or  elsewhere)  or  to  rates  of  wage  in  kindred  occupations, 
or  to  such  other  standards  or  considerations  (including  the  fact  of 
male  competition)  as  may  be  appropriate  in  the  particular  class.  In 
an  industry  where  both  men  and  women  are  engaged,  prima  facie, 
the  minimum  rates  for  women  might  be  expressed  algebraically  by 
reference  to  the  minimum  rates  for  men.  Supposing  a  living  wage 
for  a  man  to  be  "X,"  and  the  minimum  wage  for  labor  in  the  partic- 
ular industry  to  be  "X"  plus  10  per  cent,  while  the  minimum  wage 
for  skilled  labor  in  the  same  industry  in  a  particular  grade  to  be  "X" 
plus  20  per  cent,  then  the  just  renunuM'ation  for  women  would  seem 
to  be  (supposing  the  living  wage  for  a  woman  living  apart  from  her 
parents  to  be  "  Y")  "Y"  plus  10  per  cent  and  "Y"  plus  20  per  cent 
respectively. 

It  will  be  apparent  that  the  fornnila  j\ist  indicated  can  only  be 
taken  as  a  rule  of  prima  facie  value.  In  the  case  of  industries  where 
it  is  desirable  that  men  should  be  kept  in  employment,  and  there  is  a 
real  danger  of  their  being  competed  out  of  emjiloynuMit  by  women 
labor,  a  very  difficult  situation  arises.  Mr.  Parsons  submitted  that 
it  would  not  be  to  the  interests  of  the  coMununitv  that  men  should  be 


SECT.  Ill]       SOUTH    AUSTRALIAN   INDUSTRIAL   COURT  917 

kept  in  employment  (if  women  were  capable  of  doiriK  the  work)  at 
the  price  of  paying  women  a  inan's  minimum.  The  principle  which 
Mr.  Parsons  formulated  has  much  to  commend  it.  On  the  other 
hand,  I  have  to  remember  the  reasons,  some  of  them  very  cogent, 
why  women  should  not  be  encouraged  to  do  work,  which  normally 
and  properly  is  done  by  men,  at  the  cost  of  creating  unemployment 
among  the  men.  I  suggest  that  with  respect  to  any  industry  or  grade, 
where  the  prima  facie  formula  above  indicated  is  challenged,  evidence 
should  be  adduced  to  show  that  it  is  desirable,  having  in  view  the 
interests  of  all  parties  and  of  the  community,  that  men  should  be  re- 
tained in  that  industry  or  grade,  even  though  such  retention  might 
involve  some  departure  from  the  formula  in  question.  Where  such 
evidence  is  satisfactory,  there  are  several  alternatives  open  to  an 
Industrial  Court:  —  (1)  To  fix  the  same  wage  for  women  as  for 
men;  (2)  to  fix  a  ratio  wage  where  it  is  proved  to  the  satisfaction  of 
the  Court  that  the  average  woman  is  not  of  equal  value  to  the  em- 
ployer; (3)  to  exclude  women;  (4)  to  accept  the  prima  facie  mode 
of  assessment,  but  to  limit  the  proportion  of  women  who  may  be 
employed  by  any  particular  employer  in  any  particular  industry  or 
grade. 

In  choosing  between  the  alternatives  suggested,  the  factors  to 
which  I  have  referred,  and  all  the  conditions  of  the  industry  under 
adjudication,  must  be  considered  cumulatively.  The  task  of  choosing 
may  often  be  one  of  extreme  delicacy  and  difficulty.  The  legitimate 
claims  of  women,  both  to  a  free  choice  of  career  and  to  a  fair  wage  for 
work  done,  have  to  be  reconciled  and  harmonised  with  the  like  claims 
of  men.  Women  must  not  be  denied  a  living  wage  in  any  case;  but 
apart  from  this,  and  apart  from  their  just  claim  to  marginal  differ- 
ences, the  obligation  is  cast  upon  the  Industrial  Court  to  see  that 
women  are  not  doomed  to  occupy  the  unenviable  roll  of  blacklegs  in 
the  sphere  of  essentially  male  occupations.  In  the  discharge  of  this 
obligation,  the  Court  will  have  necessarily  to  sacrifice  that  will-o'- 
the  wisp  of  uniformity  of  wage  to  women  workers.  The  difficulty  of 
securing  justice  to  women's  claim  to  a  fair  wage  can  only  be  har- 
monised with  the  just  claim  of  the  community,  the  employers,  and 
the  men  wage  earners,  if  we  face  the  problem  as  it  presents  itself  in 
the  varying  conditions  of  different  industries.  Beyond  what  I  have 
already  said,  I  do  not  at  present  suggest  any  further  general  rule  as 
to  the  choice  between  the  various  alternatives  indicated  where  the 
Court  has  to  deal  with  minimum  rates  of  wage  for  women  in  occu- 
pations in  which  men  are  also  employed,  and  in  which  it  is  desirable 
that  men  should  continue  to  be  employed.  We  live  in  a  progressive 
age;  and  an  Industrial  Court  has  to  beware  of  what  I  may  describe 
as  the  premature  crystallisation  of  principle,  lest  such  crystallisation 
should  have  the  practical  effect  of  impeding  instead  of  assisting  in- 
dustrial stability  in  the  future. 


918  COMPULSORY  ARBITRATION  [CHAP.  XIX 

SUMMARY    OF    PRINCIPLES 

1.  All  women  workers  are  entitled  to  a  living  wage  and  to  a  reason- 
able addition  to  that  wage  by  way  of  marginal  differences. 

2.  The  living  wage  for  men  must  include  the  claims  of  the  "indus- 
trial mother,"  and  the  home  over  which  she  presides. 

3.  In  fixing  the  primary  minimum  wage  for  women  in  an  "am- 
biguous occupation,"  regard  must  be  paid  to  the  question  whether 
it  is  necessary  in  the  interests  of  male  workers  and  the  community, 
to  prevent  men  from  being  competed  out  of  employment  by  cheap 
female  labor.  Where  it  is  proved  to  be  necessary  —  and  the  proof 
must  depend  upon  the  evidence  adduced  with  respect  to  the  partic- 
ular industry  under  adjudication  —  then  the  Court  should  resort  to 
one  or  other  of  the  various  alternatives  indicated.  .  .  . 


Section  4.     The  Kansas  Court  of  Industrial  Relations 
COURT  OF  INDUSTRIAL  RELATIONS  ACT  (1920) 

Kansas  Special  Session  Laws  of  1920,  c.  29 

Section  1.  There  is  hereby  created  a  tribunal  to  be  known  as 
the  Court  of  Industrial  Relations,  which  shall  be  composed  of  three 
judges  who  shall  be  appointed  by  the  governor,  by  and  with  the  ad- 
vice and  consent  of  the  Senate.  Of  such  three  judges  first  appointed, 
one  shall  be  appointed  for  a  term  of  one  year,  one  for  a  term  of  two 
years,  and  one  for  a  term  of  three  years,  said  terms  to  begin  simulta- 
neously upon  qualification  of  the  persons  appointed  therefor.  Upon 
the  expiration  of  the  term  of  the  three  judges  first  appointed  as  afore- 
said, each  succeeding  judge  shall  be  appointed  and  shall  hold  his 
office  for  a  term  of  three  years  and  until  his  successor  shall  have 
been  qualified.  .  .  . 

Section  2.'  (6)  In  any  matter  pending  before  the  Court  of  In- 
dustrial Relations,  if  it  shall  be  brought  to  the  attention  of  such  court 
that  there  is  a  matter  pending  before  the  Public  Utilities  Connnis- 
sion  in  relation  to  the  rate  charged  by  the  employer,  the  Court  of 
Industrial  Relations  may  order  such  matters  to  be  heard  and  deter- 
mined at  the  same  time  by  such  commission  and  Court  of  Industrial 
Relations,  sitting  as  one  l>ody,  the  presiding  judge  of  said  Court  of 
Inchistrial  Relations  presiding,  and  in  the  case  of  a  tie  vote,  the 
presiding  judge  of  said  Court  of  Industrial  Relations  shall  cast  an 
additional  vote. 

Sf^ction  3.  (a)  The  operation  of  the  following  named  and  in- 
dicated employments,  industries,  public  utilities  and  common  car- 

'  Section  2  is  here  given  jus  amended  l»v  the  Kansjis  Act  of  1921  (Session  Laws, 
1921,  r.  201).  — P:d. 


SECT.  IV]  KANSAS   INDUSTRIAL  COURT  919 

riers  is  hereby  determined  and  declared  to  be  affected  with  a  pubhc 
interest  and  therefore  subject  to  supervision  by  the  state  as  herein 
provided  for  the  purpose  of  preserving  the  public  peace,  protecting 
the  public  health,  preventing  industrial  strife,  disorder  and  waste, 
and  securing  regular  and  orderly  conduct  of  the  businesses  directly 
affecting  the  living  conditions  of  the  people  of  this  state  and  in  the 
promotion  of  the  general  welfare,  to  wit:  (1)  The  manufacture  or 
preparation  of  food  products  whereby,  in  any  stage  of  the  process, 
substances  are  being  converted,  either  partially  or  wholly,  from 
their  natural  state  to  a  condition  to  be  used  as  food  for  human  beings ; 
(2)  The  manufacture  of  clothing  and  all  manner  of  wearing  apparel 
in  common  use  by  the  people  of  this  state  whereby,  in  any  stage  of 
the  process,  natural  products  are  being  converted,  cither  partially 
or  wholly,  from  their  natural  state  to  a  condition  to  be  used  as  such 
clothing  and  wearing  apparel;  (3)  The  mining  or  production  of  any 
substance  or  material  in  common  use  as  fuel  either  for  domestic, 
manufacturing,  or  transportation  purposes;  (4)  The  transportation 
of  all  food  products  and  articles  or  substances  entering  into  wearing 
apparel,  or  fuel,  as  aforesaid,  from  the  place  where  produced  to  the 
place  of  manufacture  or  consumption;  (5)  All  public  utilities  as 
defined  by  sec.  8329,  and  all  common  carriers  as  defined  by  sec.  8330 
of  the  General  Statutes  of  Kansas  of  1915. 

(6)  Any  person,  firm  or  corporation  engaged  in  any  such  industry 
or  employment,  or  in  the  operation  of  such  public  utility  or  common 
carrier,  within  the  State  of  Kansas,  either  in  the  capacity  of  owner, 
officer,  or  worker,  shall  be  subject  to  the  provisions  of  this  act,  ex- 
cept as  limited  by  the  provisions  of  this  act. 

Section  4.  Said  Court  of  Industrial  Relations  shall  have  its  office 
at  the  capital  of  said  state  in  the  city  of  Topeka,  and  shall  keep  a 
record  of  all  its  proceedings  which  shall  be  a  public  record  and  sub- 
ject to  inspection  the  same  as  other  public  records  of  this  state. 
Said  court,  in  addition  to  the  powers  and  jurisdiction  heretofore 
conferred  upon,  and  exercised  by,  the  Public  Utilities  Commission, 
is  hereby  given  full  power,  authority  and  jurisdiction  to  supervise, 
direct  and  control  the  operation  of  the  industries,  employments, 
public  utilities,  and  common  carriers  in  all  matters  herein  specified 
and  in  the  manner  provided  herein,  and  to  do  all  things  needful  for 
the  proper  and  expeditious  enforcement  of  all  the  provisions  of  this 
act.  ... 

Section  6.  It  is  hereby  declared  and  determined  to  be  necessary 
for  the  public  peace,  health  and  general  welfare  of  the  people  of  this 
state  that  the  industries,  employments,  public  utilities  and  com- 
mon carriers  herein  specified  shall  be  operated  with  reasonable  con- 
tinuity and  efficiency  in  order  that  the  people  of  this  state  may  live 
in  peace  and  security,  and  be  supplied  with  the  necessaries  of  life. 
'No  person,  firm,  corporation,  or  association  of  persons  shall  in  any 
-manner  or  to  aiw  extent,  willfully  hinder,  delay,  limit  or  suspend 


920  COMPULSORY  ARBITRATION  [CHAP.  XIX 

such  continuous  and  efficient  operation  for  the  purpose  of  evading 
the  purpose  and  intent  of  the  provisions  of  this  act;  nor  shall  any 
person,  firm,  corporation,  or  association  of  persons  do  any  act  or 
neglect  or  refuse  to  perform  any  duty  herein  enjoined  with  the  in- 
tent to  hinder,  delay,  limit  or  suspend  such  continuous  and  efficient 
operation  as  aforesaid,  except  under  the  terms  and  conditions  pro- 
vided by  this  act. 

Section  7.  In  case  of  a  controversy  arising  between  emploj-ers 
and  workers,  or  between  groups  or  crafts  of  workers,  engaged  in  any 
of  said  industries,  emplojTnents,  public  utihties,  or  common  car- 
riers, if  it  shall  appear  to  said  Court  of  Industrial  Relations  that 
said  controversy  may  endanger  the  continuity  or  efficiency  of  service 
of  any  of  said  industries,  employments,  public  utilities  or  common 
carriers,  or  affect  the  production  or  transportation  of  the  necessaries 
of  life  affected  or  produced  by  said  industries  or  employments,  or 
produce  industrial  strife,  disorder  or  waste,  or  endanger  the  orderly 
operation  of  such  industries,  emploj-ments,  public  utilities  or  com- 
mon carriers,  and  thereby  endanger  the  public  peace  or  threaten 
the  public  health,  full  power,  authority  and  jurisdiction  are  hereby 
granted  to  said  Court  of  Industrial  Relations,  upon  its  own  initia- 
tive, to  summon  all  necessarj^  parties  before  it  and  to  investigate 
said  controversy,  and  to  make  such  temporary  findings  and  orders 
as  may  be  necessary  to  preserve  the  public  peace  and  welfare  and  to 
preserve  and  protect  the  status  of  the  parties,  property  and  public 
interests  involved  pending  said  investigations,  and  to  take  evidence 
and  to  examine  all  necessary  records,  and  to  investigate  conditions 
surrounding  the  workers,  and  to  consider  the  wages  paid  to  labor 
and  the  return  accruing  to  capital,  and  the  rights  and  welfare  of 
the  public,  and  all  other  matters  affecting  the  conduct  of  said  in- 
dustries, employments,  public  utilities  or  common  carriers,  and  to 
settle  and  adjust  all  such  controversies  by  such  findings  and  orders 
as  provided  in  this  act.  It  is  further  made  the  duty  of  said  Court 
of  Industrial  Relations,  upon  complaint  of  either  party  to  such  con- 
troversy, or  upon  complaint  of  any  ten  citizen  taxpayers  of  the 
community  in  which  such  industries,  employments,  public  utilities 
or  common  carriers  are  located,  or  upon  the  complaint  of  the  at- 
torney-general of  the  State  of  Kansas,  if  it  shall  be  made  to  appear 
to  said  court  that  the  parties  are  unable  to  agree  and  that  such  con- 
troversy may  endanger  the  continuity  or  efficiency  of  service  of  any 
of  said  industries,  employments,  public  utilities  or  common  carriers, 
or  affect  the  production  or  transportation  of  the  necessaries  of  life 
affected  or  produced  by  said  industries  or  employments,  or  produce 
industrial  strife,  disorder  or  waste,  or  endanger  the  orderly  operation 
of  such  industries,  employments,  public  utilities  or  common  carriers, 
and  thereV)y  endanger  the  public  peace  or  threaten  the  public  health, 
to  proceed  and  investigate  and  determine  said  controversy  in  the 
same  manner  as  though  upon  its  own  initiative.     After  the  con- 


SECT.  IV]  KANSAS   INDUSTRIAL   COURT  921 

elusion  of  any  such  hearing  and  investigation,  and  as  expeditiously 
as  possible,  said  Court  of  Industrial  Relations  shall  make  and  serve 
upon  all  interested  parties  its  findings,  stating  specifically  the  terms 
and  conditions  upon  which  said  industry,  employment,  utility  or 
common  carrier  should  be  thereafter  conducted  insofar  as  the  mat- 
ters determined  by  said  court  are  concerned. 

Section  8.  The  Court  of  Industrial  Relations  shall  order  such 
changes,  if  any,  as  are  necessary  to  be  made  in  and  about  the  con- 
duct of  said  industry,  employment,  utility  or  common  carrier,  in 
the  matters  of  working  and  living  conditions,  hours  of  labor,  rules 
and  practices,  and  a  reasonable  minimum  wage,  or  standard  of 
wages,  to  conform  to  the  findings  of  the  court  in  such  matters,  as 
provided  in  this  act,  and  such  orders  shall  be  served  at  the  same 
time  and  in  the  same  manner  as  provided  for  the  service  of  the  court's 
findings  in  this  act:  Provided,  All  such  terms,  conditions  and  wages 
shall  be  just  and  reasonable  and  such  as  to  enable  such  industries, 
employments,  utilities  or  common  carriers  to  continue  with  rea- 
sonable efficiency  to  produce  or  transport  their  products  or  continue 
their  operations  and  thus  to  promote  the  general  welfare.  .  .  .  Such 
terms,  conditions,  rules,  practices,  wages,  or  standard  of  wages,  so 
fixed  and  determined  by  said  court  and  stated  in  said  order,  shall 
continue  for  such  reasonable  time  as  may  be  fixed  by  said  court,  or 
until  changed  by  agreement  of  the  parties  with  the  approval  of  the 
court.  .  .  . 

Section  9.  It  is  hereby  declared  necessary  for  the  promotion  of 
the  general  welfare  that  workers  engaged  in  any  of  said  industries, 
emplojTiients,  utilities  or  common  carriers  shall  receive  at  all  times 
a  fair  wage  and  have  healthful  and  moral  surroundings  while  en- 
gaged in  such  labor;  and  that  capital  invested  therein  shall  receive 
at  all  times  a  fair  rate  of  return  to  the  owners  thereof.  The  right  of 
every  person  to  make  his  own  choice  of  employment  and  to  make  and 
carry  out  fair,  just  and  reasonable  contracts  and  agreements  of 
employment,  is  hereby  recognized.  .  .  . 

Section  12.  In  case  of  the  failure  or  refusal  of  either  party  to 
said  controversy  to  obey  and  be  governed  by  the  order  of  said  Court 
of  Industrial  Relations,  then  and  in  that  event  said  court  is  hereby 
authorized  to  bring  proper  proceedings  in  the  Supreme  Court  of  the 
State  of  Kansas  to  compel  compliance  with  said  order;  and  in  case 
either  party  to  said  controversy  should  feel  aggrieved  at  any  order 
made  and  entered  by  said  Court  of  Industrial  Relations,  such  party 
is  hereby  authorized  and  empowered  within  ten  days  after  service 
of  such  order  upon  it  to  bring  proper  proceedings  in  the  Supreme 
Court  of  the  State  of  Kansas  to  compel  said  Court  of  Industrial 
Relations  to  make  and  enter  a  just,  reasonable  and  lawful  order  in 
the  premises.  .  .  . 

Section  17.  It  shall  be  unlawful  for  any  person,  firm  or  cor- 
poration, or  for  any  association  of  persons,  to  do  or  perform  any  act 


922  COMPULSORY  ARBITRATION  [CHAP.  XIX 

forbidden,  or  to  fail  or  refuse  to  perform  any  act  or  duty  enjoined 
by  the  provisions  of  this  act,  or  to  conspire  or  confederate  with 
others  to  do  or  perform  any  act  forbidden,  or  to  fail  or  refuse  to  per- 
form any  act  or  duty  enjoined  by  the  provisions  of  this  act,  or  to 
induce  or  intimidate  any  person,  firm  or  corporation  engaged  in  any 
of  said  industries,  employments,  utilities  or  common  carriers  to  do 
any  act  forbidden,  or  to  fail  or  refuse  to  perform  any  act  or  duty 
enjoined  by  the  provisions  of  this  act,  for  the  purpose  or  with  the 
intent  to  hinder,  delay,  limit,  or  suspend  the  operation  of  any  of 
the  industries,  employments,  utilities  or  common  carriers  herein 
specified  or  indicated,  or  to  delay,  limit,  or  suspend  the  production 
or  transportation  of  the  products  of  such  industries,  or  employments, 
or  the  service  of  such  utilities  or  common  carriers:  Provided,  That 
nothing  in  this  act  shall  be  construed  as  restricting  the  right  of  any 
individual  employee  engaged  in  the  operation  of  any  such  industry, 
emplojonent,  public  utility,  or  common  carrier  to  quit  his  employ- 
ment at  any  time,  but  it  shall  be  unlawful  for  anj^  such  individual 
employee  or  other  person  to  conspire  with  other  persons  to  quit  their 
employment  or  to  induce  other  persons  to  quit  their  employment 
for  the  purpose  of  hindering,  delaying,  interfering  with,  or  suspend- 
ing the  operation  of  any  of  the  industries,  employments,  public 
utilities,  or  common  carriers  governed  by  the  provisions  of  this  act, 
or  for  any  person  to  engage  in  what  is  known  as  "picketing,"  or  to 
intimidate  b}^  threats,  abuse,  or  in  any  other  manner,  any  person 
or  persons  with  intent  to  induce  such  person  or  persons  to  quit  such 
employment,  or  for  the  purpose  of  deterring  or  preventing  any  other 
person  or  persons  from  accepting  employment  or  from  remaining 
in  the  employ  of  any  of  the  industries,  employments,  public  utilities, 
or  common  carriers  governed  by  the  provisions  of  this  act. 

Section  18.  Any  person  willfully  violating  the  provisions  of 
this  act,  or  any  valid  order  of  said  Court  of  Industrial  Relations, 
shall  be  deemed  guilty  of  a  misdemeanor,  and  upon  conviction  thereof 
in  any  court  of  competent  jurisdiction  of  this  state  shall  be  punished 
by  a  fine  of  not  to  exceed  $1000,  or  by  imprisonment  in  the  county 
jail  for  a  period  of  not  to  exceed  one  year,  or  by  both  such  fine  and 
imprisonmcuit.   .   .   . 

Section  20.  In  case  of  the  suspension,  limitation  or  cessation 
of  the  operation  of  any  of  the  industries,  employments,  public  utilities 
or  common  carriers  affected  by  this  act,  contrary  to  the  provisions 
hereof,  or  to  the  orders  of  said  couit  madc^  henMuider,  if  it  shall  ap- 
pear to  said  court  that  such  suspension,  limitation,  or  cessation  shall 
seriously  affect  the  public  welfare  by  endangering  the  pul)li('  peace, 
or  threatening  the  pul)lic  health,  then  said  court  is  her(>l)y  authorized, 
empowered  and  dir(!cted  to  take  proper  proceedings  in  any  court  of 
competent  jurisdiction  of  this  state  to  take  ovcm-.  control,  direct  and 
operate  said  iiuhistiy,  emploxinent,  i)ubh('  iitihty  or  common  carrier 
during  such  emergency:   Provided,  That  a  fair  return  and  compensa- 


SECT,  IV]  KANSAS  INDUSTRIAL   COURT  923 

tion  shall  be  paid  to  the  owners  of  such  industry,  employment, 
public  utility  or  common  carrier,  and  also  a  fair  wage  to  the  workers 
engaged  therein,  during  the  time  of  such  operation  under  the  pro- 
visions of  this  section. 

Section  21.  When  any  controversy  shall  arise  between  employer 
and  employee  as  to  wages,  hours  of  employment,  or  working  or  living 
conditions,  in  any  industry  not  hereinbefore  specified,  the  parties  to 
such  controversy  ma}^,  by  mutual  agreement,  and  with  the  consent  of 
the  court,  refer  the  same  to  the  Court  of  Industrial  Relations  for  its 
findings  and  orders.  Such  agreement  of  reference  shall  be  in  writing, 
signed  by  the  parties  thereto;  whereupon  said  court  shall  proceed  to 
investigate,  hear,  and  determine  said  controversy  as  in  other  cases, 
and  in  such  case  the  findings  and  orders  of  the  Court  of  Industrial 
Relations  as  to  said  controversy  shall  have  the  same  force  and  effect 
as  though  made  in  any  essential  industry  as  herein  provided.  .  .  . 

STATE  OF  KANSAS  v.  THE  TOPEKA  EDISON 

COMPANY 

Court  of  Industrial  Relations  of  Kansas.     1920 

Docket  No.  3254-1-2  {March  29,  1920) 

HuGGiNS,  J.  The  complainant  Richard  J.  Hopkins  is  the  attorney- 
general  of  the  State  of  Kansas;  the  other  complainants  are  residents 
of  Topeka,  Kan.,  are  electrical  workers,  members  of  Local  Union 
No.  841  of  the  International  Brotherhood  of  Electrical  Workers, 
and  also  members  of  a  committee  appointed  by  said  local  union  to 
take  action  in  the  matter  of  the  dispute  and  controversy  hereinafter 
stated.  The  respondent,  the  Topeka  Edison  Co.,  is  a  corporation 
under  the  laws  of  the  State  of  Kansas,  and  is  engaged  in  the  busi- 
ness of  generating  and  selling  electric  current  for  lighting  and  power 
purposes.  It  supplies  the  citizens  of  the  city  of  Topeka,  and  also 
of  the  city  of  Oakland,  in  Shawnee  county,  Kansas,  with  current 
for  lighting  their  houses  and  places  of  business.  It  supplies  the  cur- 
rent used  as  power  by  mills  and  numerous  other  industries,  and 
also  by  the  Topeka  Street  Railway  Co.,  which  operates  the  street- 
car system  in  said  cities  of  Topeka  and  Oakland. 

The  complaint  alleges  the  matters  heretofore  stated,  and  further 
that  a  controversy  has  arisen  between  the  members  of  said  local  union 
and  said  respondent  in  the  matter  of  hours  of  labor  and  wages.  .  .  . 
The  complaint  further  alleges  that  ...  if  said  controvers}'-  remains 
unsettled,  it  will  lead  to  other  and  further  disputes  and  controversies 
between  said  workers  and  said  respondent,  and  between  employees 
and  employers  engaged  in  similar  industries;  and  that  it  will  en- 
danger the  continuity  and  efficiency  of  service  of  said  utility  and 
thereby  endanger  the  orderly  operation  not  onty  of  said  utility  but 
of  other  industries  relying  upon  said  utility  for  current,  for  light, 


924  COMPULSORY   ARBITRATION  [CHAP.  XIX 

and  for  power,  and  that  it  will  thereby  endanger  the  public  peace, 
health  and  general  welfare. 

The  complainants  pray  that  this  court  make  due  investigation 
and  ascertain  the  facts,  and  after  due  hearing  make  such  finding 
and  prescribe  such  orders,  rules  and  regulations,  wages,  and  hours 
of  labor  as  may  be  just  and  reasonable. 

To  this  complaint  the  respondent  answers,  admitting  its  incor- 
poration and  the  extent  and  nature  of  its  business  as  alleged  in  the 
complaint,  and  admitting  the  controversy,  and  that  said  controversy 
is  unsettled;  and  stating  that  the  respondent  has  offered  the  com- 
plainants an  increase  in  wages  of  two  and  one-half  cents  per  hour, 
which  complainants  have  refused,  and  are  insisting  upon  an  increase 
of  ten  cents  per  hour  and  the  basic  eight -hour  day,  etc.  .  .  . 

Under  the  provisions  of  the  industrial  laws  of  this  state,  this  is  a 
case  of  which  this  court  has  jurisdiction.  The  respondent  is  a  public 
utility  engaged  in  the  extremely  important  business  of  furnishing 
electric  current  to  the  citizens  of  a  community  of  some  fifty  thousand 
population.  The  controversy  is  of  such  a  nature  as  that  it  may 
endanger  the  public  peace,  health,  and  general  welfare,  and  the 
continuity  and  efficiency  of  the  service.  Sec.  6  of  the  industrial  act 
provides : 

"It  is  hereby  declared  and  determined  to  be  necessary  for  the 
public  peace,  health,  and  general  welfare  of  the  people  of  this  state 
that  the  industries,  employments,  public  utilities,  and  common 
carriers  herein  specified  shall  be  operated  with  reasonable  continuity 
and  efficiency  in  order  that  the  people  of  this  state  may  hve  in  peace 
and  security  and  be  supphed  with  the  necessaries  of  life." 

In  sec.  9  of  the  act  is  provided: 

"It  is  hereby  declared  necessary  for  the  promotion  of  the  general 
welfare  that  workers  engaged  in  any  of  said  industries,  employments, 
utilities  or  common  carriers  shall  receive  at  all  times  a  fair  wage 
and  have  healthful  and  moral  surroundings  while  engaged  in  such 
labor,  and  that  capital  invested  therein  shall  receive  a  fair  rate  of 
return  to  the  owners  thereof." 

Wholly  aside  from  altruistic  considerations,  always  vital  in  such 
cases,  the  intention  of  the  legislature  is  plain  and  its  wisdom  can- 
not be  doubted.  These  are  the  essential  industries  upon  the  contin- 
uous and  efficient  operation  of  which  the  people  depend  for  the 
necessaries  and  comforts  of  life.  It  is,  therefore,  a  matter  of  public 
interest  that  skilled  and  faithful  workers  should  be  always  available 
in  these  industries.  The  legislature  evidently  considered  that  in 
order  to  insure  skilled  and  faithful  workers  a  fair  wage  must  be  paid 
and  healthful  and  moral  surroundings  provided,  else  workers  of  the 
highest  skill  and  fidelity  would  leave  the  employment  of  such  in-' 
stitutions  and  seek  a  better  wage  and  l)etter  conditions  offered  l)y 
enterprises  of  a  private  nature.  The  same  reasoning  applies  with 
equal  force  to  capital  seeking  investment. 


SECT.  IV]  KANSAS   INDUSTRIAL  COURT  925 

The  evidence  in  this  case  is  very  voluminous  and  covers  a  wide 
range  of  facts  and  conditions.  There  is  very  Httle  conflict  in  it.  The 
evidence  shows  conclusively  that  the  workers  who  are  represented 
by  the  individual  complainants  are  skilled  workers;  that  they  have 
been  employed,  in  most  cases,  by  the  respondent  for  a  considerable 
length  of  time;  that  they  have  had  sufficient  experience  and  have 
acquired  sufficient  skill  to  be  cafied  "first-class"  workers.  Their 
fidelity  is  not  questioned,  and  there  seems  to  be  no  feeling  of  an- 
imosity between  the  management  of  the  respondent  and  the  work- 
ers themselves.  They  are  known  as  "Hnemen."  They  build  and 
repair  the  transmission  lines  by  means  of  which  the  respondent 
carries  and  distributes  the  current  from  its  plant  to  its  various  cus- 
tomers. The  work  in  which  they  are  engaged  is  hazardous,  owing 
to  the  fact  that  they  are  compelled,  at  times,  to  handle  wires  carry- 
ing 2300  volts  of  electric  current.  One  death  has  occurred  in  recent 
years  and  several  serious  accidents  have  taken  place  caused  by 
workers  coming  in  contact  with  "hot"  wires.  The  evidence  shows 
that  many  life  insurance  companies  refuse  to  insure  workers  en- 
gaged in  this  line  of  work,  and  that  many  others,  although  accepting 
the  risk,  require  a  larger  premium.  The  evidence  also  shows  that  it 
takes  from  three  to  four  years'  study  and  experience  to  fit  persons 
to  become  first-class  linemen. 

For  several  years  prior  to  1916  workers  of  this  class  employed  by 
the  respondent  were  paid  a  daily  wage  of  $2.75.  In  1916  the  wage 
was  increased  to  $90  per  month  on  the  basis  of  a  26-day  month  and 
a  nine-hour  day.  In  May,  1919,  another  increase  was  granted 
whereby  these  workers  received  sixty  cents  per  hour  for  a  basic  day 
of  eight  hours,  with  time  and  a  half  for  overtime  and  double  time  for 
Sunday  work.  .  .  . 

Prior  to  the  year  1919,  the  workers  were  able  to  live  and  support 
their  families  reasonably  upon  the  wage  which  they  received.  One 
of  the  workers  testified  that  on  his  former  wages  he  saved  some 
money  with  which  he  bought  Liberty  bonds.  This  same  worker, 
however,  testified  that  under  the  new  schedule  of  sixty  cents  per 
hour,  or  $4.80  per  day,  with  the  tremendous  increase  in  the  cost  of 
living,  he  is  unable  to  save  anything  and  is  unable  to  support  his 
family  as  well  as  he  did  under  the  $2.75  per  day  or  the  $90  per  month 
scale.  The  evidence  clearly  shows  what  is  a  matter  of  common 
knowledge  —  that  the  cost  of  living  has  increased  to  an  enormous 
extent  and  that  a  considerable  increase  has  occurred  within  the 
past  year.  Speaking  approximately,  the  price  of  food  had  increased 
by  November,  1919,  over  November,  1913,  100  per  cent;  clothing, 
155  per  cent;   and  furniture  and  furnishings,  156  per  cent. 

One  of  the  workers  also  testified  that  he  had  bought  none  but 
working  clothes  for  the  past  four  years ;  that  a  pair  of  working  shoes 
he  formerly  paid  $2.50  for,  last  year  he  paid  $6  for;  and  that  this 
year  they  cost  $9.     He  testified  that  he  gave  $3  for  a  pair  of  half- 


926  COMPULSORY  ARBITRATION  [CHAP.  XIX 

soles  on  his  working  shoes;  that  a  pair  of  overalls,  which  formerly 
cost  90  cents  or  a  dollar,  now  cost  S2.85.  The  evidence  shows  that 
the  cost  of  the  coal  used  by  these  employees  in  1916  and  1917  was 
$4.50  a  ton,  while  during  the  past  winter  the  price  of  the  same  coal 
was  $10.50  a  ton.  The  evidence  also  shows  that  decently  habitable 
houses  in  the  city  of  Topeka  rent  for  from  thirtj^  per  cent  to  fifty 
per  cent  more  than  they  did  a  few  years  ago.  It  is  only  fair,  how- 
ever, to  state  that  the  evidence  shows  a  slight  decrease  in  the  price 
of  some  food  products  within  the  last  month  or  six  weeks,  and  it  is 
hoped  that  there  will  be  a  further  decline  in  these  unprecedented  and 
exorbitant  prices. 

While  the  scale  of  wages  for  this  kind  of  mechanical  work  at  Topeka 
is  only  $4.80,  at  Wichita  and  Kansas  City,  Kan.,  it  is  $6  per  day. 
The  same  class  of  work  in  the  building  trades  in  Topeka  is  $7  per 
day  and  at  other  places  somewhat  higher  than  that.  The  evidence 
shows,  however,  that  while  the  emplo^onent  of  these  outside  line- 
men is  practically  continuous,  the  inside  or  building  trades  men  are 
engaged  in  work  which  is  more  or  less  seasonal  in  its  character  and 
not  continuous.  The  outside  linemen  —  first-class  men,  such  as 
the  complainants  —  at  Abilene  get  60  cents  per  hour;  at  Leaven- 
worth, $90  per  month;  at  Lawrence,  42  cents  per  hour;  at  Man- 
hattan, $110  per  month;  at  Junction  City,  42  cents  per  hour;  at 
Pittsburg,  60  cents  per  hour;  at  Atchison,  60  cents  per  hour.  These 
are  smaller  towns  where  fewer  men  are  employed  and  are  probably 
not  as  comparable  with  Topeka  as  are  Wichita  and  Kansas  City, 
both  of  which  are  approximately  the  same  sized  towns  as  Topeka. 

The  foregoing  seems  to  the  court  to  state  the  essential  facts  of 
the  case.  The  only  controversy  left  to  be  settled  is  the  controversy 
as  to  the  wages  to  be  paid.  The  court  is  commanded  by  the  people 
of  this  state,  speaking  through  the  state  legislature,  to  assure  to  these 
workers  a  fair  wage,  and  to  this  utility  a  fair  rate  of  return  upon  its 
property  used  and  useful  in  the  service  of  the  public.  The  question, 
therefore,  which  we  must  now  decide  is:  What  is  a  fair  wage?  The 
Congress  of  the  United  States  in  the  recent  railroad  legislation  de- 
clares that: 

"In  determining  the  justness  and  reasonableness  of  such  wages 
and  salaries  or  working  conditions  the  Board  shall,  so  far  as  ap- 
plicable, take  into  consideration  among  other  relevant  circumstances: 

(1)  The  scales  of  wages  paid  for  similar  kinds  of  work  in  other 
industries; 

(2)  The  relation  between  wages  and  the  cost  of  living; 

(3)  The  hazards  of  the  employment; 

(4)  The  training  and  skill  required; 

(5)  The  degree  of  responsibility ; 

(6)  The  character  and  regularity  of  the  employment;   and 

(7)  Ine(iualities  of  incicases  in  wages  or  of  treatment,  the  result 
of  previous  wage  orders  or  adjustments." 


SECT.  IV]  KANSAS  INDUSTRIAL  COURT  927 

To  the  points  enumerated  by  Congress,  this  court,  in  view  of  the 
almost  universal  complaint  as  to  inefficiency  and  lower  production 
in  all  lines  of  industry,  desires  to  add  another,  to  wit: 

(8)  The  skill,  industry,  and  fidelity  of  the  individual  employee. 

A  living  wage  may  be  defined  as  a  wage  which  enables  the  worker 
to  supply  himself  and  those  absolutely  dependent  upon  him  with 
sufficient  food  to  maintain  life  and  health;  with  a  shelter  from  the 
inclemencies  of  the  weather;  with  sufficient  clothing  to  preserve 
the  body  from  the  cold  and  to  enable  persons  to  mingle  among  their 
fellows  in  such  ways  as  may  be  necessary  in  the  preservation  of  life. 
But  it  is  not  a  living  wage  only  which  this  court  is  commanded  by 
the  people  of  this  state  to  assure  workers  engaged  in  these  essential 
industries.  The  statute  uses  the  word  "fair"  and  commands  us 
to  assure  to  these  workers  a  "fair"  wage.  What  is  a  fair  wage? 
Upon  this  subject,  of  course,  there  may  be  a  great  variety  of  opinions 
expressed.  It  seems  safe  to  say,  however,  that  the  circumstances 
above  enumerated  should  be  considered  in  arriving  at  a  conclusion 
as  to  what  constitutes  a  fair  wage.  The  skilled  worker,  in  fairness, 
should  have  a  higher  wage  than  the  unskilled  worker.  The  worker 
who  has  spent  years  of  time  and  effort  in  preparing  himself  for  a 
peculiarly  technical  line  of  work  is  entitled  to  greater  consideration 
from  the  public  than  the  more  unskilled  worker.  The  hazards  of 
the  employment  should  also  be  noted  and  the  worker  engaged  in 
such  an  employment  as  that  under  consideration  should  receive  a 
higher  wage  than  his  fellow  who  may  be  engaged  in  a  safe  occupation. 
The  degree  of  responsibility  placed  upon  the  worker  is  a  matter  of 
importance.  The  continuity  and  regularity  of  the  employment 
should  be  considered,  for  it  is  apparent  that  an  employment  which 
is  seasonal  in  its  nature  must  have  a  higher  wage  than  one  in  which 
regular,  steady  work  is  offered,  because,  after  all,  it  is  the  annual 
earnings  that  are  to  govern  rather  than  the  daily  wage,  in  many 
instances.  By  no  means  the  least  important  consideration  should 
be  the  industry  and  fidelity  of  the  individual,  for  the  worker  who  is 
faithful  to  his  trust  and  is  industrious,  working  to  the  best  of  his 
ability  in  the  interest  of  his  employer,  is  entitled,  as  a  matter  of 
right,  to  a  greater  reward  than  the  worker  who  thinks  only  of  his 
wage  and  not  of  the  interest  of  his  employer  and  of  the  public  who 
are  directly  affected  by  his  labors.  Perhaps  more  important  than 
any  other  circumstance,  however,  is  the  relation  of  the  wage  to  the 
cost  of  living. 

In  all  these'  respects  the  complainants  herein  represent  a  class  of 
workers  who  measure  up  to  the  best  standard  and  are  called  "first- 
class  workers"  as  well  as  "skilled  workers."  Such  persons,  in  all 
fairness,  are  entitled  to  a  wage  which  will  enable  them  to  procure 
for  themselves  and  their  families  all  the  necessaries  and  a  reasonable 
share  of  the  comforts, of  life.  They  are  entitled  to  a  wage  which  will 
enable  them  by  industry  and  economy  not  only  to  supply  them- 


928  COMPULSORY  ARBITRATION  [CHAP.  XIX 

selves  with  opportunities  for  intellectual  advancement  and  reason- 
able recreation,  but  also  to  enable  the  parents  working  together  to 
furnish  to  the  children  ample  opportunities  for  intellectual  and 
moral  advancement,  for  education,  and  for  an  equal  opportunity 
in  the  race  of  life.  A  fair  wage  will  also  allow  the  frugal  man  to 
provide  reasonably  for  sickness  and  old  age. 

The  industrial  statutes,  however,  empower  this  court  to  fix  only 
a  minimum  wage,  and  in  fixing  said  wage  to  state  a  reasonable  time 
which  said  wage  shall  continue  or  until  changed  by  agreement  by 
the  parties  with  the  approval  of  the  court.  It  is  not,  therefore,  for 
the  court  to  fix  a  maximum  wage.  The  minimum  may  be  fixed 
and  the  maximum  must  depend  upon  the  skill,  fidelity  and  indus- 
try of  the  employee,  the  fair  and  equitable  disposition  of  the  em- 
ployer, the  prosperit}^  of  the  business,  and  other  economic  circum- 
stances. 

In  view  of  all  the  matters  heretofore  stated,  the  court  finds  .  .  . 
that  the  wage  paid  by  the  respondent  to  the  complainants  is  un- 
reasonably low  and  is  not  a  fair  wage  to  be  paid  to  these  complainants 
and  other  workers  similarly  situated  and  employed  by  the  respond- 
ent because  of  the  present  unprecedented  cost  of  living  and  other 
facts  and  conditions  herein  stated;  and  that  a  fair  minimum  wage 
to  be  paid  the  complainants  and  others  similarly  situated  and  em- 
ployed by  the  respondent  at  this  time  is  sixty-seven  and  one-half 
cents  (67^c.)  per  hour  on  the  basis  of  an  eight-hour  day,  time  and  a 
half  for  overtime  and  double  time  for  Sundays.  The  court  further 
finds  that  said  rules  and  practices  and  such  minimum  wage  should 
be  instituted  on  the  first  of  the  ensuing  calendar  month  and  should 
continue  for  a  period  of  six  months  thereafter  unless  changed  by  agree- 
ment of  the  parties  with  the  approval  of  the  court. 

An  order  will  issue  accordingly. 

Judges  Reed  and  Wark  concur.^ 

DAVIDSON  V.  THE  JOPLIN  &  PITTSBURG  RAIL- 
WAY COMPANY 
Court  of  Industrial  Relations  of  Kansas.     1920 

Docket  No.  3283  (April  23,  1920) 
HuGGiNS,  J.     The  complainants  are  officers  and  members  of  local 
union  No.  497  of  the  Amalgamated  Association  of  Street  and  Elec- 
tric Railway  Employees  of  America.    The  respondent  is  an  electrical 
interurban    railway   company   engaged   in   business   as   a   conunon 

'  The  standard  here  set  forth  was  further  aflfinnod  jind  explained  in  Wcndolc 
V.  Union  Pacific  Ry.  (June  1.5,  1920)  Docket  No.  .3293. 

Compare  liarricr  liranch  /-.  Hrokon  Hill  l'ro|)rictary  Co.,  3  Com.  Arl).  Rep. 
(Australia)  1,  .s/t/>r«,  p.  «S1;  W.  AiikHj^s  &  (^o.  nud  The  Australasian  Meat  Indus- 
try Kiiiployccs'  Union.  10  Com.  Arh.  Rep.  46.5,  sujrra,  p.  890;  also,  sec  pp.  882, 
883,  Hupra. 


SECT.  IV]  KANSAS   INDUSTRIAL   COURT  929 

carrier,  operating  an  electric  interurban  railway  between  Girard 
and  Pittsburg,  in  Crawford  county,  Kansas,  and  between  Columbus 
in  Cherokee  county,  Kansas,  and  Pittsburg  in  Crawford  county, 
Kansas,  and  into  and  through  other  cities  and  communities  in  Chero- 
kee and  Crawford  counties,  Kansas,  and  between  Pittsburg,  Kan., 
and  Joplin,  Mo.  The  respondent  employs  each  and  all  of  the  mem- 
bers of  said  local  union  No.  497,  the  membership  of  said  local  union 
being  composed  of  motormen,  conductors,  blacksmiths,  blacksmiths' 
helpers,  machinists,  machinists'  helpers,  carpenters  of  the  first  and 
second  class,  painters,  painters'  helpers,  pitmen,  pitmen's  helpers, 
armature  winders,  armature  winders'  helpers,  car  cleaners,  head- 
light men,  and  telephone  men. 

The  complaint  alleges  the  facts  above  stated,  and  further  alleges 
that  a  controversy  has  arisen  between  the  respondent  and  its  em- 
ployees regarding  the  matter  of  wages.  The  complaint  alleges  .  .  . 
that  the  controversy  between  said  respondent  and  its  employees 
will  affect  the  public  and  will  endanger  the  public  peace,  the  public 
health  and  general  welfare  of  a  large  section  of  the  State  of  Kansas; 
and  the  complainants  pray  that  this  court  take  jurisdiction  of  the 
controversy,  and  after  proper  investigation,  make  and  establish 
a  reasonable  wage  and  grant  such  other  relief  as  may  be  just  and 
proper. 

To  this  complaint  the  respondent  answers  that  this  court  has  no 
jurisdiction  to  hear  and  consider  the  complaint  because  of  the  fact 
that  said  respondent  is  engaged  in  interstate  commerce.  .  .  .  This 
answer  of  the  respondent  was  duly  considered  and  this  court  held 
that  it  has  jurisdiction  of  the  subject  matter  stated  in  the  complaint. 

Whereupon  time  was  allowed  to  the  respondent,  and  the  respond- 
ent afterwards  filed  its  answer  to  the  complaint.  In  said  second 
answer  said  respondent  re-alleges  all  the  matters  stated  in  its  first 
answer,  and  in  addition  thereto  states  that  a  wage  contract,  dated 
August  1,  1914,  and  expiring  August  1,  1920,  between  the  respond- 
ent and  its  said  employees,  is  in  existence  and  in  full  force  and  efi"ect, 
and  that  said  contract  fixes  the  wages  and  condition  of  employment 
of  the  complainants.  The  respondent  challenges  the  jurisdiction  of 
this  court  to  alter  the  terms  of  said  contract  and  alleges  that  to  do 
so  would  be  in  violation  of  sec.  10  of  article  1  of  the  Constitution 
of  the  United  States,  and  of  sec.  1  of  article  14  of  the  Constitution 
of  the  United  States,  and  in  violation  of  the  bill  of  rights  of  the  Con- 
stitution of  the  State  of  Kansas;  and  denies  that  any  controversy 
has  arisen  which  is  endangering  or  will  endanger  the  continuous  opera- 
tion of  its  business,  or  affect  the  transportation  of  passengers  and 
freight.  The  answer  further  alleges,  in  substance,  that  the  respond- 
ent is  unable  with  its  present  earnings  to  pay  a  higher  rate  of  wages 
to  the  complainants  than  it  is  now  doing. 

Two  entire  days  were  taken  up  in  hearing  the  evidence  upon  the 
issues  joined  herein.     The  evidence  is  very  voluminous  and  covers 


930  COMPULSORY  ARBITRATION  [CHAP.  XIX 

a  wide  range  of  facts.  Among  other  important  points,  the  evidence 
shows  that  within  recent  years  a  strike  of  eighty  da3^s  occurred, 
totally  paralyzing  the  business,  with  a  result  of  more  than  $68,000 
loss  to  the  company.  Later  a  thirty-six-da}'^  strike  occurred  with 
a  corresponding  loss  to  the  company.  In  both  of  these  strikes,  of 
course,  there  was  a  very  heavy  loss  in  wages  to  the  men  and  a  tremen- 
dous economic  waste  in  that  portion  of  Kansas  and  Missouri  served 
by  the  respondent.  Some  voluntary  increases  in  wages  have  been 
made  since  August  1,  1914.  In  May,  1918,  a  wage  controversy  was 
submitted  to  Hon.  William  H.  Taft  and  Frank  P.  Walsh,  joint  chair- 
men of  the  war  labor  board,  and  on  July  31,  1918,  a  decision  was 
rendered  by  the  war  labor  board  in  which  the  wage  scale  was  fixed 
as  follows: 

Rate  per  Hour  Paid  Shop  and  Barn  Men,  Motormen  and 
Conductors 

Blacksmith 49i^  per  hour. 

Blacksmith  helper 42i    per  hour. 

Machinist ol^i  per  hour. 

Machinist  helper 42^    per  hour. 

Carpenter  —  first  class    49ic  per  hour. 

Carpenter  —  second  class  43ic  per  hour. 

Painter oU?^  per  hour. 

Painter  helper  42^    per  hour. 

Pitman  (truck  and  electric  equipment 

repairs) 42^    per  hour. 

Pitman  helper 42^    per  hour. 

Armature  winder 5U^  per  hour. 

Armature  winder  helper    42c^    per  hour. 

Car  cleaner    42d    per  hour. 

Headlight,  taillight  and  telephone  men  .  . .  $126  per  month. 
Motorman  and  conductor: 

First  three  months 386    per  hour. 

Next  nine  months 40^    per  hour. 

After  one  year 42«f    per  hour. 

This  award  took  effect  as  of  May  24,  1918,  and  was  to  continue 
for  the  duration  of  the  war  except  that  either  party  might  reopen 
the  case  before  the  arbitrators  at  periods  of  six-months'  intervals, 
beginning  February  1,  1919,  for  such  adjustments  as  changed  con- 
ditions might  render  necessary. 

In  the  present  controversy  the  complainants  claim  the  right  to 
reopen  the  case  before  the  Court  of  Industrial  Relations  on  the 
ground  that  the  war  labor  board  has  ceased  to  function  and  that  this 
court,  having  been  created  since  the  war  labor  board  went  out  of 
existence,  is  the  proper  tribunal  before  which  the  matter  should  be 
heard.  The  respoiulcnt,  on  the  contrary,  claims  that  the  contract 
of  August  1,  1914,  precludes  any  such  submission  to  this  court.  In 
this  controversy  the  court  holds  with  the  complainants. 


SECT.  IV]  KANSAS   INDUSTRIAL  COURT  931 

The  present  problem  is  somewhat  compHcated  by  the  fact  that 
both  skilled  and  unskilled  labor  is  involved  and  because  there  is  a 
very  wide  divergence  between  the  various  crafts  and  classes  of  labor 
as  to  the  responsibility  imposed.  All  this  makes  it  more  or  less  diffi- 
cult to  fairly  adjust  the  difference  in  the  wage  rates  to  the  various 
classes.  It  is  unnecessary  to  review  the  evidence  as  to  changed  con- 
ditions in  the  matter  of  the  cost  of  living.  Suffice  it  to  say  that  the 
evidence  shows  a  constantly  increasing  cost  of  all  the  necessaries  of 
life.  The  war  labor  board  practically  fixed  42  cents  per  hour  as  the 
minimum,  and  thus  it  gave  unskilled  laborers,  such  as  car  cleaners, 
the  same  wage  that  it  gave  motormen  and  conductors,  whose  busi- 
ness requires  not  only  some  considerable  skill,  but  carries  with  it 
great  responsibility.  It  is  difficult  to  estimate  the  increased  cost 
in  living  which  has  taken  place  since  the  award  by  the  war  labor 
board,  but  the  evidence  shows  that  such  increase  has  been  consider- 
able and  that  motormen  and  conductors  working  ten  hours  per  day 
and  seven  days  in  a  week  constantly  are  unable  upon  the  present 
wage  to  support  their  families  with  that  degree  of  comfort  which 
we,  in  America,  regard  as  necessary  in  order  to  meet  the  reasonable 
requirements  of  sober,  industrious,  and  faithful  working  men  and 
their  families.  Some  of  the  motormen  and  conductors  have,  after 
doing  a  full  day's  work  at  their  regular  employment,  taken  extra 
jobs  of  evenings  and  nights  to  eke  out  their  earnings.  Others  have 
exhausted  the  small  earnings  which  they  had  accumulated  in  pre- 
vious years.  .  .  . 

In  determining  a  fair  wage,  the  court  should  take  into  considera- 
tion among  other  relevant  circumstances: 

(1)  The  scales  of  wages  paid  for  similar  kinds  of  work  in  other 
industries ; 

(2)  The  relation  between  wages  and  the  cost  of  living; 

(3)  The  hazards  of  the  employment ; 

(4)  The  training  and  skill  required; 

(5)  The  degree  of  responsibility; 

(6)  The  character  and  regularity  of  the  employment;  and 

(7)  The  skill,  industry,  and  fidelity  of  the  individual  employee. 
The  most  serious  difficulty  which  confronts  us  is  the  ability  of 

the  industry  to  pay  the  increased  wage.  The  Joplin  and  Pittsburg 
Railway  Co.  has  not  been  financially  prosperous  for  several  years. 
It  does  not  pay  a  reasonable  return  upon  the  physical  value  of  its 
property  used  and  useful  in  the  operation  of  its  business.  However, 
very  recently  certain  increases  in  freight  and  passenger  rates  have 
been  granted  it  by  this  court,  which  it  is  believed  will  considerably 
increase  its  earnings.  The  company,  however,  is  sulTering  from  the 
same  conditions  which  the  commission  appointed  by  the  President 
to  investigate  electric  street  and  interurban  railway  companies  found 
to  exist  all  over  the  United  States.  It  is  a  fact  which  is  so  apparent 
that  it  needs  no  argument  that  every  motor  truck  and  every  motor 


932  COMPULSORY  ARBITRATION  [CHAP.  XIX 

bus,  and,  in  fact,  to  some  extent,  every  passenger  automobile  of 
every  kind,  is  an  enemy  of  the  electric  street  and  interurban  rail- 
way. The  competition  of  the  automobile  is  telling  constantly  upon 
the  business  of  such  companies  as  the  respondent.  However,  the 
community  served  by  the  respondent  is  peculiarly  a  community  in 
which  such  mode  and  means  of  transportation  is  necessary.  Chero- 
kee and  Crawford  counties,  Kansas,  and  Jasper  county,  Missouri, 
through  which  the  respondent  operates  its  lines,  is  covered  with 
mining  camps  and  villages  and  towns.  The  people  live  in  the  vil- 
lages and  settlements  and  go  back  and  forth  to  their  work  in  the 
mines.  This  section,  therefore,  will  need  the  services  of  the  interurban 
for  many  years  to  come. 

This  court  is  very  desirous  to  do  nothing  in  this  case  which  will 
unduly  burden  the  respondent.  However,  it  must  be  admitted  that 
wages  to  labor  should  be  considered  before  dividends  to  the  investor, 
and  that  a  business  which  is  unable  to  pay  a  fair  rate  of  wage  to  its 
employees  will  eventuallj^  have  to  liquidate.  The  Kansas  law  imposes 
upon  this  court  the  obligation,  so  far  as  it  has  power  to  do  so,  to 
assure  to  labor  a  fair  wage  and  to  capital  a  fair  return.  This  is  one 
of  the  essential  industries,  and  it  is  a  matter  of  great  public  interest 
that  skilled  and  faithful  workers  should  always  be  available  therein. 
The  intention  of  the  legislature  is  plain.  In  order  to  insure  skilled 
and  faithful  workers  in  these  industries,  a  fair  wage  must  be  paid, 
and  healthful  and  moral  surroundings  provided.  Otherwise,  work- 
ers of  the  highest  skill  and  fidelity  would  seek  emploj^ment  in  other 
institutions.  But  it  is  also  necessary  that  capital  invested  in  such 
essential  industries  should  be  assured  a  fair  return.  Otherwise  such 
industries  would  languish  for  want  of  capital  and  the  public  would 
suffer  as  a  result. 

In  consideration  of  all  the  evidence  introduced,  the  court  finds 
that  a  controversy  does  exist  between  the  complainants  and  the 
respondent  which,  if  allowed  to  proceed,  would  endanger  the  con- 
tinuity and  efficiency  of  the  service  of  the  respondent,  would  affect 
the  transportation  of  the  necessaries  of  life,  would  produce  industrial 
strife,  disorder  and  waste,  and  would  thereby  endanger  the  public 
peace,  threaten  the  public  health,  and  injuriously  affect  the  general 
welfare  of  the  public  of  the  communities  served  by  the  respondent. 

The  court  further  finds  from  all  the  evidence  that  the  present  wage 
scale  is  unreasonably  low  and  is  not  a  fair  scale  of  wages  to  be  paid 
to  the  employees  involved  in  this  controversy.  .  .  . 

Judged  by  that  standard,  the  court  finds  that  the  following  scale 
of  wages  is  a  fair,  just  and  reasonable  minimum  wage  scale  to  be 
paid  to  said  employees,  to  wit: 


SECT.  IV]  KANSAS  INDUSTRIAL  COURT  933 

Motormen  and  conductors: 

Plrst  three  months  45(^  per  liour. 

Next  nine  months 4H<^  per  hour. 

Next  twelve  months 51^  per  hour. 

After  two  years 55^  per  hour. 

Blacksmiths 55(f  per  hour. 

Blacksmith  helpers 4o(^  per  hour. 

Machinists 60^  per  hour. 

Machinist  helpers 45<t  per  hour. 

Carpenter  —  first  class    55?f  per  hour. 

Carpenter  —  second  class  48^  per  hour. 

Painter 55cS  per  hour. 

Painter  helpers   45^  per  hour. 

Pitmen  55^  per  hour. 

Pitmen  helpers    45^  per  hour. 

Armature  winders 60^  per  hour. 

Armature  winder  helpers 45^  per  hour. 

Car  cleaners 45^  per  hour. 

Headlight,  taillight  and  telephone  men  ....  $135  per  month. 
All  of  said  wages  to  be  on  the  same  basis  heretofore  existing 
as  to  hours  of  labor  and  overtime. 

The  court  further  finds  that  said  minimum  wage  scale  should 
apply  only  to  such  employees  of  the  respondent  as  are  actual  bona 
fide  residents  of  the  State  of  Kansas,  and  whose  work  is  located 
wholly  or  principally  within  said  state;  that  said  wage  scale  should 
be  put  in  force  and  effect  on  the  first  day  of  May,  1920,  and  should 
continue  in  force  and  effect  for  a  period  of  six  months  thereafter  or 
until  changed  by  agreement  of  the  parties  with  the  approval  of  the 
court. 

An  order  will  issue  accordingly. 

Judges  Reed  and  Wark  concur.^ 


AMALGAMATED  ASSN.  OF  STREET  AND  ELECTRIC 
RAILWAY  EMPLOYEES  OF  AMERICA,  LOCAL 
UNION  NO.  497  v.  THE  JOPLIN  &  PITTS- 
BURG RAILWAY  CO. 

Court  of  Industrial  Relations  of  Kansas.  1920 

Docket  No.  3653  (Dec.  9,  1920) 

Huggins,  J.  This  is  a  complaint  on  the  part  of  certain  organized 
workers,  employees  of  the  Joplin  &  Pittsburg  Railway  Co.,  in  which, 
in  substance,  they  state  that  they  have  heretofore  worked  for  the 
company  under  a  contract  which  expired  August  1,  1920;   that  the 

*  Accord:  Federated  Engine-Drivers  i'.  Broken  Hill  Proprietary  Co.,  7  Com. 
Arb.  Rep.  (Australia)  132,  supra,  p.  888;  Barrier  Branch  of  the  Amalgamated 
Miners'  Assn.  t'.  Broken  Hill  Proprietary  Co.  Ltd.,  3  Com.  Arb.  Rep.  1,  31-36. 

President  W.  Jethro  Brown  of  the  South  Australian  Industrial  Court  declared 


934  COMPULSORY  ARBITRATION  [CHAP.  XIX 

company  and  the  officers  of  the  local  union  have  attempted  to  nego- 
tiate a  new  contract ;  that  they  have  agreed  upon  a  large  part  of  the 
contract,  but  that  there  are  elements  upon  which  they  are  unable  to 
come  to  an  agreement.  They  state  facts  and  have  proved  facts  in 
this  case  sufficient  to  give  this  court  jurisdiction  of  the  matter.  .  .  . 

The  testimony  in  this  case  showed  that  up  to  about  August,  1920, 
the  men  in  the  car  barns  were  employed  on  a  ten-hour  basis  at  42 
cents  per  hour.  Subsequently  the  working  schedule  was  reduced  to 
an  eight-hour  basis.  It  was  testified  both  by  the  company  officials 
and  the  employees  that  the  amount  of  work  turned  out  by  the  same 
or  a  smaller  number  of  men  working  eight  hours  was  equal  to  that 
formerly  handled  on  a  ten-hour  basis.  The  effect  of  the  change  in 
the  working  schedule  was  to  reduce  the  compensation  of  car-barn 
employees  to  the  extent  of  two  hours  per  day,  or  one-fifth  of  their 
total  wage.  In  view  of  the  fact  that  it  is  agreed  that  the  amount  of 
work  performed  by  these  men  on  an  eight-hour  basis  is  as  much  as 
was  performed  formerly  on  a  ten-hour  basis,  the  court  feels  that  the 
equities  of  the  situation  would  be  preserved  if  the  company  would 
adjust  the  compensation  until  April  1,  1921,  on  a  basis  of  the  equal 
of  nine  hours'  pay  for  eight  hours'  service.  Such  an  act  would  be  a 
recognition  of  the  higher  efficiency  at  which  the  men  are  now  working 
and  would  afford  some  relief  to  the  employees  during  the  period  of 
readjustment  downward  of  living  costs. 

One  of  the  principal  contentions  of  the  complainants  is  that  the 
eight-hour  day  should  be  established  in  this  business.  Upon  this 
point  considerable  testimony  was  taken,  and  the  hearing  was  con- 
tinued for  the  purpose  of  permitting  the  chief  accountant  of  this  court 
to  go  to  Pittsburg  and  go  over  the  books  and  records  of  the  company, 
to  meet  the  men  and  see  if  it  would  be  possible  to  figure  out  a  schedule 
of  trains  whereby  the  eighteen-hour  service  required  by  the  com- 
munity might  be  divided  into  three  shifts,  so  that  the  men  could  do 
the  work  in  eight-hour  shifts  instead  of  nine.  After  considerable 
study,  and  after  consulting  with  the  management  and  with  the  men 
at  Pittsburg,  om-  chief  accountant  worked  out  a  schedule  for  the 
operation  of  thes3  trains  upon  the  eight-hour  basis,  but  with  con- 
siderable additional  cost  to  the  company.  Upon  the  further  hearing 
of  th(!  case,  however,  when  the  question  was  i^ivsented,  the  represen- 
tatives of  the  men  took  the  position  that  they  nuist  have  the  same 
pay  for  the  eight-hour  day  which  they  are  receiving  for  the  nine-hour 
day,  and  according  to  the  figures  of  our  chief  accountant,  whicli  were 
u'lcontroverted  at  the  trial,  this  would  put  an  additional  financial 
burden  upon  the  company  in  excess  of  $25,000  annually.  Now,  while 
that  is  not  a  very  large  sum  and  would  not  be  a  bunhMi  to  a  l)ig  rail- 
in  The  Living  Wane  Case,  2  South  Aiisfrahaii  IiKlustrial  Hep.  IH,  .it  p.  117: 
"It,  hits  hcoii  freriuciitly  hclfl  hy  this  Court  that  :i  liviiiji;  vvaK<*  must  l)e  paid  even 
if  it  involves  the  closing  down  of  particular  industries." 

Compare  Fort  Sinitli  tt  Western  Raih-oad  Co.  r.  Mills,  2.>}  U.  S.  2()7). 


I 


SECT.  IV]  KANSAS  INDUSTRIAL  COURT  935 

road  company,  yet  as  stated  in  previous  opinions  of  this  court,  tiiis 
company  is  operating  now  on  a  very  close  business  margin.  In  fact, 
the  evidence  before  us  sliovvs  that  in  order  to  pay  fixed  charges,  in- 
cluding interest  upon  a  reasonable  bonded  indebtedness  not  in  excess 
of  the  actual  value  of  the  property,  the  company  would  have  to  take 
from  its  depreciation  fund  if  it  is  to  pay  reasonaV)le  rates  of  interest, 
which  the  evidence  shows  it  is  recjuired  to  psiy.  It  is  plain,  therefore, 
to  put  an  additional  burden  of  S25,0()()  a  year  upon  this  company  is  a 
matter  of  serious  concern  to  the  company  itself  and  to  the  community 
which  it  serves.  This  court  would  not  hesitate  to  place  that  burden 
upon  the  company  if  it  were  necessary  to  do  so  in  order  to  provide  a 
fair  wage  and  reasonable  working  conditions.  As  stated  in  Docket 
No,  3283,  wages  must  come  before  dividends,  and  a  business  which 
cannot  pay  a  fair  wage  and  at  the  same  time  earn  a  reasonable  return 
must  eventually  liquidate. 

This  brings  us  to  the  question:  Is  a  nine-hour  da}^  in  the  street  or 
interurban  railway  business  an  unfair  day  to  labor?  In  the  opinion 
of  the  court,  no  arbitrary  rule  can  be  fixed  as  to  the  length  of  a  work- 
ing day.  In  many  vocations,  such  as  deep-shaft  mining,  working  in 
smelters,  glass  factories,  steel  mills,  around  furnaces,  or  where  there 
are  conditions  detrimental  to  the  health,  or  where  the  work  is  so 
arduous  as  to  be  a  severe  tax  upon  the  strength,  a  six-hour  day  may 
be  too  long.  In  many  lines  of  labor  a  longer  day  would  be  unreason- 
able and  unfair.  It  depends  upon  the  nature  of  the  work.  It  depends 
upon  the  physical  or  mental  strain.  Now,  there  is  another  question 
which  should  also  be  considered  in  determining  the  proper  length  of 
a  working  day.  No  matter  how  light  the  work  may  be,  how  little  the 
mental  or  physical  strain,  there  comes  a  limit  in  the  length  of  a  work- 
ing day  beyond  which  you  cannot  go  without  invading  the  social 
rights  of  the  worker.  Every  worker  is  entitled  to  live  the  life  of  a 
human  being.  Every  worker  is  entitled  to  a  reasonable  time  for  rest, 
for  recreation,  for  self-improvement,  for  social  diversion,  for  the 
family  circle.  The  working  day  may  be  so  long  as  to  invade  these 
social  rights,  even  though  the  mental  and  physical  strain  be  a  matter 
of  little  consequence.  It  is  the  opinion  of  the  court  that  a  nine-hour 
day  does  not  unduly  deprive  the  worker  of  these  social  privileges. 
Now,  the  mental  and  physical  strain  of  operating  a  street  car  are  not 
excessive.  There  are  no  unhealthy  conditions  about  it,  there  are  no 
obnoxious  fumes  or  gas,  there  are  no  great  hazards,  there  is  no  severe 
mental  strain.  There  is  considerable  responsibility  and  some  skill 
required,  but  the  men  are  sheltered  from  the  storm  and  there  is  no 
extreme  hardship  about  the  business.  In  consideration  of  all  these 
circumstances,  it  is  the  opinion  of  the  court  that  the  nine-hour  day 
in  this  particular  occupation  is  not  unfair  to  the  worker.  The  court 
will  not,  therefore,  require  the  respondent  in  this  case  to  institute  an 
eight-hour-day  system.  .  .  . 

Another  important  matter  was  called  to  our  attention,  and  that  is 


936  COMPULSORY  ARBITRATION  [CHAP.  XIX 

the  length  of  the  working  day  for  freight-train  crews.  The  evidence 
shows  that  the  working  daj'  is  eleven  hours,  with  time  and  a  half  for 
overtime,  but  that  the  average  working  day  is  much  more  than  eleven 
hours,  being  between  twelve  and  thirteen  hours.  Of  course,  this  in- 
cludes the  noon  hour.  The  freight  crews  take  their  lunches  with  them 
and  stop  at  some  convenient  place  in  their  work,  while  waiting  for 
passing  trains,  or  for  other  reasons,  on  the  sidetrack,  and  eat  their 
lunches.  However,  this  working  day  is  entirely  too  long.  It  is  so 
long  as  to  be  very  trying  upon  the  physical  strength  of  the  men  and 
it  encroaches  unduly  upon  their  social  rights.  The  circumstances  are 
hard  to  adjust  to  a  reasonable  workday.  The  freight  business  of  the 
road  is  so  small  and  the  circumstances  under  which  the  freight  busi- 
ness is  conducted  are  such  as  to  make  this  a  difficult  question.  Never- 
theless, this  court  cannot  sanction  so  long  a  working  day.  It  is  so 
unfair  to  the  men  that,  as  a  matter  of  public  policy,  it  should  not  be 
permitted.  With  the  freight  crews,  however,  the  work  is  only  for 
six  days  in  the  week,  so  that  the  men  have  their  Sundays  free.  The 
court  very  much  regrets  its  inability  to  make  an  order  requiring  all 
of  the  employees  of  this  company  to  have  Sundays  off.  In  the  matter 
of  the  freight-train  crews  it  is  possible  to  have  the  six-day  week.  In 
view  of  all  the  facts,  it  is  the  opinion  of  the  court  that  the  working 
day  for  the  freight-train  crews  should  be  on  the  basis  of  a  nine-hour 
minimum  and  a  ten-hour  maximum,  including  the  lunch  period  in  the 
middle  of  the  day,  with  time  and  a  half  after  ten  hours.  .  .  . 


MAY  V.  THE  CHARLES  WOLFF  PACKING  CO. 

Court  of  Industrial  Relations  of  Kansas.     1921 

Docket  No.  3926  (May  2,  1921) 

HuGGiNS,  J,  The  complaint  in  this  case  was  filed  on  January  19, 
1921.  The  issues  were  joined  by  the  filing  of  an  answer  by  the  re- 
spondent on  the  28th  day  of  January,  1921.  This  case  has  been 
delayed  far  beyond  what  is  usual  in  this  court  because  of  changes 
made  in  the  industrial  law  by  the  legislature,  which  was  in  session  at 
the  time  the  complaint  was  filed  and  remained  in  session  until  about 
the  middle  of  March.  The  legislature  made  such  changes  as  took 
away  from  the  Industrial  Court  the  work  of  the  Public  Utilities  Com- 
mission; and  because  of  that  change  tliere  was  a  change  in  the  per- 
sonnel of  the  court  and  in  the  personnel  of  the  working  force,  all  of 
which  has  caused  some  delay  herein. 

The  complainants  are  the  president,  secretary,  and  treasurer  of 
Local  Union  No.  17G  of  the  Amalgamated  Meat  Cutters'  and  Butch- 
ers' Workmen  of  North  America,  a  lal)()r  union.  The  respondent  is 
a  meat-packing  company,  whose  i)lant  is  located  in  the  city  of  Topeka, 
Kan.  The  respondent's  business  consists  in  the  slaughtering  of  va- 
rious kinds  of  live  stock  and  converting  the  said  live  stock  into  meats 


SECT.  IV]  KANSAS  INDUSTRIAL  COURT  937 

of  various  kinds  and  qualities,  lards,  oils  and  other  products,  all  or 
nearly  all  of  which  are  used  as  food  for  human  beings.  .  .  . 

Specifically,  the  complaint  states  that  prior  to  January  1,  1921, 
said  Local  Union  No.  176  and  its  members  were  employed  by  the 
respondent  under  the  terms  and  by  virtue  of  a  written  contract  in  the 
nature  of  a  collective  bargain;  that  said  contract  by  its  terms  would 
expire  on  January  1,  1921,  unless  renewed  by  the  parties.  That  on 
January  14,  1921,  the  respondent  gave  notice  to  the  complainants, 
through  their  said  officers  and  by  posted  notices,  that  said  contract 
would  not  be  renewed  for  another  year,  and  that  respondent  has  re- 
fused to  enter  into  any  contract  for  the  government  or  control  of 
future  employment  of  the  members  of  said  union.  That  the  respond- 
ent, on  the  14th  day  of  January,  1921,  gave  notice  to  the  members  of 
said  union  and  to  other  employees  that  the  wages  had  been  cut;  that 
said  cut  in  wages  would  range  in  the  different  emplojonents  all  the 
way  from  seven  and  one-half  cents  per  hour  to  fifteen  cents  per  hour. 
That  under  the  terms  of  said  collective  contract  a  basic  day  of  eight 
hours  was  recognized,  and  there  was  a  guarantee  of  at  least  forty 
hours  per  week  epiployment  at  the  regular  rate  set  out  in  the  sched- 
ules, which  were  a  part  of  said  contract,  and  also  that  overtime  from 
and  after  the  eight  hours'  work  in  any  one  day  should  be  paid  to  the 
employees  at  the  rate  of  time  and  one-half.  That  all  of  said  pro- 
visions had  been  abrogated  by  the  respondent;  and  that  at  the  time 
of  the  filing  of  the  complaint  there  was  no  basic  day  established  and 
no  stated  time  constituting  a  day's  work;  that  there  was  no  guarantee 
as  to  the  number  of  hours'  work  during  the  week,  and  that  in  certain 
of  the  skilled  employments  other  modifications  had  been  made  which 
reduced  the  wage.  .  .  .  The  complainants  pray  that  the  court  take 
jurisdiction  of  the  controversy  and  enter  upon  a  full  investigation  of 
the  dispute,  and  that  after  said  hearing  the  court  make  an  order 
fixing  a  fair  and  reasonable  wage  for  the  complainants,  and  authoriz- 
ing and  compelling  the  respondent  to  enter  into  a  contract  for  the 
continuance  of  service  of  its  employees  at  such  fair  and  reasonable 
rates,  and  for  such  other  relief  in  the  premises  as  might  be  found  right 
and  proper  under  the  industrial  law  of  this  state.  The  complaint  is 
verified  by  the  three  officers  of  the  union  above  named.  .  .  . 

At  the  beginning  of  the  trial  of  this  case  the  complainants  asked 
and  obtained  leave  of  court  to  file  an  amendment  to  their  complaint. 
In  this  amendment  they  complained  that  women  workers  are  paid  a 
much  lower  wage  than  men  for  the  same  class  of  work,  and  ask  the 
court  to  make  an  order  fixing  the  wage  of  women  and  men  doing  the 
same  class  of  work  at  the  same  rate.  After  taking  the  matter  under 
consideration,  and  at  the  beginning  of  the  second  day  of  the  trial,  the 
respondent  in  open  court  consented  that  any  order  made  herein 
should  contain  a  provision  that  women  and  men  at  the  same  class  of 
work  should  receive  the  same  pay. 

Both  parties  to  the  controversy  also  in  open  court  stated  that  the 


938  COMPULSORY  ARBITRATION  [CHAP.  XIX 

business  of  the  respondent  had  always  been  operated  upon  what  is 
known  as  an  "open-shop"  basis,  and  that  no  change  in  that  regard 
was  desired  by  either  party. 

The  complaint  herein  is  filed,  as  before  stated,  by  the  officers  of  the 
organized  workers,  but  will  be  treated  bj^  the  court  as  a  complaint 
upon  behalf  of  all  employees  now  engaged  or  hereafter  to  be  engaged 
in  the  operation  of  the  respondent's  plant  in  Topeka.  .  .  . 

A  large  amount  of  testimony  was  taken  with  reference  to  the  pres- 
ent cost  of  living  as  compared  with  the  same  cost  one  year  ago.  There 
is  a  conflict  in  this  testimony.  The  complainants  contend  that  the 
downward  trend  in  the  cost  of  the  necessaries  of  life  has  not  materially 
affected  the  retail  trade  as  yet.  On  the  contrary,  the  evidence  of  the 
respondent  tends  to  show  that  there  has  been  a  reduction  in  the  cost 
of  the  necessaries  and  comforts  of  life  amounting  to  25  per  cent  or 
more  within  the  past  twelve  months. 

It  is  admitted  that  the  contract  of  employment  as  set  out  in  the 
complaint  was  entered  into  as  alleged  therein,  and  that  wages  were 
paid  in  accordance  therewith  and  working  conditions  were  governed 
thereby  from  the  1st  of  January,  1920,  until  the  17th  of  January, 
1921.  On  the  latter  date  a  reduction  in  wages  was  made  by  the  re- 
spondent. The  evidence  shows  that  the  wage  cut  amounts,  on  the 
average  hourly  wage,  to  a  reduction  of  10 j  per  cent  upon  the  wages 
provided  for  under  the  contract.  This  reduction,  however,  is  not 
uniform.  In  some  of  the  positions  in  the  plant  the  wage  is  slightly 
increased  by  the  new  schedule,  while  in  others  it  is  reduced  con- 
siderably more  than  lOj  per  cent. 

One  of  the  principal  contentions  in  the  evidence  is  the  question  of 
the  eight-hour  basic  day.  Upon  this  point  the  evidence  shows  that 
many  workers,  especially  those  engaged  in  what  is  called  the  killing, 
cutting,  and  trimming  departments,  are  in  the  very  nature  of  the 
business  compelled  to  work  under  conditions  which  are  disagreeable 
and  are  not  conducive  to  the  health  of  the  workers.  Some  of  these 
workers  are  standing  over  scalding  vats  in  rooms  that  are  more  or 
less  filled  with  steam  from  the  hot  water;  others  are  working  under 
conditions  which  require  them  to  wear  rubber  boots  and  rubber  cloth- 
ing to  protect  themselves  from  blood,  water,  and  steam;  others  are 
handling  the  entrails  and  the  different  parts  of  the  carcasses  of  the 
slaughtered  animals  and  using  water  in  the  cleansing  process.  While 
the  evidence  shows  to  the  entire  satisfaction  of  the  court  that  the 
work  in  this  plant  is  done  under  the  best  possible  conditions  of  clean- 
liness, nevertheless  there  is  about  the  work  that  which  not  onh'  re- 
quires strenuous  physical  exertion,  but  is  also  disagreeable  and  more 
or  less  uiilicahliful  in  other  respects.   .   .   . 

The  eviden(;(';  shows  also  that  the  workers  in  these  departments 
are  compelled  when  they  arrive  at  the  plant  in  the  morning  to  take 
off  their  ordinary  clothing  and  to  put  on  clothing  which  will  protect 
them  from  the  dampness  and  from  direct  contact  with  the  carcasses 


SECT.  IV]  KANSAS   INDUSTRIAL   COURT  939 

of  the  slaughtered  animals  and  which  will  meet  the  re(|uirements  of 
the  Federal  regulations  in  such  matters;  and  before  they  leave  at 
night  they  must,  of  course,  change  back,  wash  themselves,  and  pre- 
pare to  return  to  their  homes.  Now  this  process,  which  occupies 
the  time  of  the  employees  from  thirty  minutes  to  an  hour  per  day,  is 
done  on  the  employees'  own  time;  the  hourly  wage  does  not  begin 
until  the  employee  gets  to  his  place  of  duty,  and  it  ends  when  he 
leaves  that  place  of  duty  after  the  day's  work  is  done.  To  do  an 
eight-hour  day's  work,  therefore,  workers  engaged  in  this  occupa- 
tion are  required  to  be  inside  the  plant  at  least  eight  and  one-half 
hours  and  possibly  nine  hours  per  day. 

In  view  of  all  these  matters,  it  is  the  opinion  of  the  court  that  this 
is  an  employment  in  which  eight  hours,  as  a  general  rule,  should 
constitute  a  day's  work. 

On  the  other  hand,  the  respondent's  evidence  shows  that  it  is 
unable  to  control  the  supply  of  live  stock.  Farmers  and  stock  raisers 
will  ship  in  the  live  stock  when  it  is  ready  to  ship;  and  so  in  spite  of 
all  the  management  can  do  to  keep  up  a  steady  supply,  there  will  be 
times  when  the  yards  fill  up  and  it  becomes  necessary  in  order  to 
avoid  great  loss  to  the  company  to  run  more  than  eight  hours  a 
day. 

A  sharp  conflict  in  the  evidence  took  place  upon  this  proposition. 
It  is  claimed  by  the  respondent  that  in  some  instances  where  time 
and  one-half  for  overtime  is  paid,  employees,  and  especially  those 
who  are  not  permanently  employed  by  the  company,  will  "slack" 
on  the  job  the  seventh  and  eighth  hours  for  the  purpose  of  getting 
over  into  the  ninth  hour  to  get  the  high  pay.  Respondent  therefore 
claims  that  the  extra  pay  for  overtime  is  a  reward  for  slack  work  on 
the  part  of  the  workers.  This  accusation  is  bitterly  denied  by  the 
complainants,  who  claim  that  the  workers  generally  would  prefer 
the  eight-hour  day  at  the  lower  wage  than  the  nine-hour  daj^  at 
the  higher  wage.  The  evidence  is  so  conflicting  that  the  court  must, 
of  course,  call  to  its  aid  its  general  knowledge  of  human  nature. 

Overtime  should  not  be  considered  in  the  light  of  extra  pay;  the 
wage  should  be  fair  on  the  eight-hour  basic  day.  Overtime  should 
be  considered  as  a  penalty  upon  the  company  to  prevent  the  long 
hours  and  exhaustion  of  the  workers.  It  is  evident,  therefore,  that 
the  company  should  not  be  penalized  when,  by  reason  of  circum- 
stances over  which  it  has  no  control,  it  may  be  necessary  to  run 
the  plant  a  little  longer  than  the  eight-hour  day  in  order  to  save  loss 
which  would  otherwise  occur.  On  the  other  hand,  there  must  be 
some  provision  which  would  prevent  the  management  from  taking 
advantage  of  that  situation  to  work  long  hours  for  the  mere  purpose 
of  making  extra  profits.  The  matter  of  overtime  should  also  be  so 
adjusted  as  that  it  would  not  be  a  temptation  to  an  unfaithful  worker 
to  slack  his  work  during  the  eight-hour  period  in  order  to  reap  the 
reward  of  the  higher  wage  in  the  ninth  and  tenth  hours. 


940  COMPULSORY  ARBITRATION  [CHAP.  XIX 

Another  serious  controversy  in  the  ease  arises  over  the  question 
of  the  weekly  guarantee.    It  seems  from  the  evidence  that  it  has  been 
the  custom  of  packing  companies  such  as  the  respondent  to  guarantee 
to  its  workers  forty-four  hours  emplojanent  per  week.    This  custom 
never  has  prevailed  in  the  respondent's  plant,  but  under  the  previous 
contract  there  was  a  guarantee  of  forty  hours  per  week.     The  evi- 
dence shows  that  the  plant  has  been  running  so  continuously  prior 
to  the  trial  of  this  case  that  the  matter  of  the  guarantee  was  of  little 
consequence;    but  the  complainants  are  very  insistent  that  such  a 
guarantee   shall   be   provided.      The   theory  of  the  workers   is,  of 
course,  that  in  the  absence  of  such  a  guarantee  the  employees  are 
wholly  dependent  upon  the  continuity  of  operation.     If  the  plant 
operates  three  or  four  days  a  week  the  earnings  of  the  workers  fall 
so  low  that  it  is  impossible  for  them  to  live  decently,  and  that  any 
wage  fixed  by  this  court  might  be  made  an  unfair  wage  by  the  com- 
pany limiting  its  operation.     The  respondent,  on  the  other  hand, 
claims  that  some  of  its  workers,  and  especially  its  transient  workers 
who  remain  with  it  for  a  very  short  time,  take  advantage  of  this 
guarantee,  refusing  at  times  to  respond  when  they  are  needed  for 
work,  but  always  claiming  the  benefits  of  the  guarantee  in  case  the 
work  has  been  slack  and  they  have  not  been  offered  the  forty  hours 
per  week  emplojTiient.     The  respondent,  however,  frankly  states 
that  it  recognizes  that  the  regular  employees  must  be  given  such 
continuous  employment  as  will  enable  them  to  decently  support 
themselves.    The  respondent  in  this  connection  stated  in  open  court 
that  any  fair  and  reasonable  rule  promulgated  in  the  order  will  be 
observed  by  the  respondent. 

This  case  involves  one  of  the  most  serious  considerations  in  con- 
nection with  the  administration  of  the  industrial  act.  The  respond- 
ent is  not  a  public  utility;  it  is  one  of  those  industries  which  are 
declared  to  be  impressed  with  public  interest;  but  the  court  has  no 
power  to  regulate  the  prices  which  it  may  charge  for  its  commodities 
as  may  bo  done  in  regard  to  public  utilities.  Therefore,  any  order 
made  by  this  court  fixing  a  wage  must  be  very  carefully  considered, 
in  view  of  the  fact  that  the  respondent  is  doing  business,  and  must 
continue  to  do  business,  upon  an  open  and  more  or  less  competitive 
market,  and  in  view  of  the  fact  that  the  plant  cannot  be  expected 
to  operate  for  any  long  period  of  time  at  a  loss.  On  the  other  hand, 
it  may  be  stated  that  there  is  an  irreducible  minimum  below  which 
workers  cannot  be  and  must  not  be  required  to  work.  Unfortunately, 
the  laboring  man  is  not  in  a  position  to  take  advantage  of  rising  mar- 
kets or  prosperous  conditions  to  make  a  big  profit  at  any  time.  This 
the  business  concern  may  do  and  often  does  do.  Just  at  tiie  present 
time  the  business  of  the  respondent,  as  shown  by  the  evidence,  is 
not  in  a  prosperous  condition.  It  is  admitted,  however,  that  the 
loss  which  occurred  to  the  respondent  lust  year  was  caused  by  world- 
wide business  conditions  which  are  believed  and  at  least  arc  hoped 


SECT.  IV]  KANSAS   INDUSTRIAL  COURT  941 

to  be  temporary.  The  respondent  frankly  states  that  the  prospects 
for  the  coining  year  are  brighter,  and  it  is  hoped  that  the  business 
will  be  more  prosperous. 

The  industrial  law  of  this  state  is  intended  to  he  as  fair  to  capital 
as  it  is  to  labor.  It  is  specifically  declared  that  it  is  necessary  in  the 
promotion  of  the  general  welfare  that  labor  employed  in  these  essen- 
tial industries  shall  receive  a  fair  wage  and  that  capital  invested 
therein  shall  receive  a  fair  return.  Any  order  made  by  this  court, 
after  having  been  put  into  force  and  effect  for  a  period  of  sixty  days, 
may  be  reviewed  at  the  instance  of  either  party  and  additional  evi- 
dence introduced  to  show  its  practicability,  its  impracticability,  its 
reasonableness  or  its  unreasonableness.  The  order  made  in  this 
case  at  this  time  will  be  made  in  view  of  that  provision  of  the  law. 
The  business  conditions  of  the  day  are  unusual  and  unstable,  and 
sixty  days  or  ninety  days  may  bring  about  such  changes  as  would 
require  a  revision  of  any  order  made  herein. 

In  view  of  all  the  evidence  the  court  finds  that  — 

(1)  In  this  industry  the  principles  of  the  open  shop,  as  now  and 
heretofore  existing  by  agreement  of  the  parties,  should  be  approved 
by  the  court  and  should  continue. 

(2)  Employees,  whether  organized  or  unorganized,  should  receive 
wages  as  shown  in  schedules  hereinafter  set  out,  which  said  wages 
the  court  finds  to  be  reasonable  and  fair. 

(3)  A  basic  working  day  of  eight  hours  should  be  observed  in  this 
industry;  but  a  nine-hour  day  may  be  observed,  not  to  exceed  two 
days  in  any  one  week,  without  penalty:  Provided,  however,  That  if 
the  working  hours  of  the  week  shall  exceed  forty-eight  in  number, 
all  over  forty-eight  should  be  paid  for  at  the  rate  of  time  and  one- 
half;  furthermore,  in  case  a  day  in  excess  of  the  eight-hour  day  shall 
be  observed  more  than  two  days  in  any  one  week,  all  over  eight 
hours,  except  for  said  two  days  in  said  week,  should  be  paid  for  at 
the  rate  of  time  and  one-half,  even  though  the  working  hours  of  the 
week  ma^  be  forty-eight  hours  or  fewer. 

(4)  No  guarantee  of  time  per  week  is  specifically  found  at  this 
time;  but  sufficient  work  should  be  offered  to  the  regular  employees 
in  each  and  every  month  so  that  the  monthly  earnings  of  regular 
workers  will  be  sufficient  to  constitute  a  fair  wage  under  the  Kansas 
industrial  law,  as  heretofore  defined  by  this  court.  .  .  . 

(9)  Women  workers  should  receive  the  same  w^ages  as  men  en- 
gaged in  the  same  class  and  kind  of  work. 

(10)  Toilets  and  dressing  rooms  used  by  the  women  workers 
should  be  in  charge  of  a  woman. 

(11)  Piece-work  rates  should  be  paid  in  accordance  with  piece- 
work schedule  herein  set  out.  .  .  . 

(13)  The  total  working  time  for  women  employees,  inclusive  of 
overtime,  should  not  exceed  fifty-four  hours  in  any  one  week  and 
not  more  than  nine  hours  in  any  one  day. 


942  COMPULSORY  ARBITRATION  [CHAP.  XIX 

(14)  Workers  paid  by  the  week  or  day,  if  employed  within  the 
plant  and  not  within  the  office  or  sales  department,  should  be  sub- 
ject to  hours  of  work  and  overtime  as  other  employees  under  the 
terms  of  finding  No.  3  hereof. 

(15)  In  view  of  the  reduction  in  the  cost  of  the  necessities  and  the 
comforts  of  life,  the  wages  hereinafter  set  out  in  the  schedules  are, 
in  the  opinion  of  the  court,  the  equivalent  in  purchasing  power  of 
the  wages  paid  under  said  contract  of  1920.  .  .  . 

(18)  The  following  is  a  fair  and  reasonable  schedule  of  minimum 
wages  to  be  paid  by  the  respondent  company  to  its  respective  em- 
ployees, effective  May  2,  1921,  to  wit: 

HOG-KILLING   GANG 

Driver  $0,421  per  hour. 

Shackler    471 

Sticker    60  «      • 

Drop  hogs 43  " 

Tub  men 45  " 

Second  scalder 47|         " 

Scalder 60 

Hook  on  machine    47^         " 

Trip  between   -45 

Cut  strings 50 

Shave  head 47^ 

Shave  hams    -50 

Shave  sides  and  backs    47?         " 

Shave  shoulders  (two  men)    $0.50  to        .72^" 

Shave  necks   47^ 

Steam  heads  and  shoulders 42J         " 

Steam  flanks 42^ 

Singe  heads      -42^ 

Singe  hams  -42-2 

Header -575 

Break  aitch  and  drop  bungs  (comb)    67^         " 

Snatch  guts 60  " 

Splitter   721 

Cut  out  bruises $0.50  to        .72^ 

Face  hams -52  i 

Pulllard   47i 

Retaining  room   60 

[Other  detailed  schedules  follow  which  are  here  omitted.  —  Ed.] 

(19)  The  establishing  of  the  above  minimum-wage  schedule  should 
not  in  any  way  be  construed  as  restricting  or  preventing  the  respond- 
ent from  paying  a  higlier  vvag(^  when  the  same  is  deemed  advisable. 

(20)  In  the  departments  operating  twenty-foin-  iiours  a  day  and 
seven  days  a  week,  each  employee  therein  shall  be  entitled  to  one  day 


SECT.  IV]  KANSAS   INDUSTRIAL   COURT  943 

off  each  week.  In  other  departments  work  performed  on  Sundays 
and  legal  holidays  should  be  paid  for  at  the  rate  of  time  and  one- 
half. 

An  order  will  issue  in  accordance  herewith. 

Judges  McDermott  and  Crawford  concur.' 


HAM  V.  THE  TOPEIO.  RAILWAY  CO. 

Court  of  Industrial  Relations  of  Kansas.     1921 

Docket  No.  147  (Aug.  22,  1921) 

HuGGiNS,  J.  On  August  7,  1920,  this  tribunal  made  an  order  in 
an  action  between  the  above-named  parties  covering  the  question 
of  wages,  and  in  that  particular  case  included  also  a  matter  of  fares 
to  be  charged  passengers  upon  the  respondent's  railway.  Bj'  the 
order  at  that  time  the  wages  of  the  complainants  were  increased 
approximately  30  per  cent  over  the  wage  theretofore  prevailing. 
To  meet  the  increase  in  wages  an  increase  in  fares  was  granted  to  the 
respondent. 

The  case  now  before  this  tribunal  involves  only  wages  and  working 
conditions.  It  is  admitted  by  all  the  parties  that  no  further  increase 
in  fares  is  practical.  The  complainants  are  organized  employees  of 
the  respondent,  and  the  organization  is  known  as  Local  Division  No. 
797  of  the  Amalgamated  Association  of  Street  and  Electric  Railway 
Employees  of  America.  The  respondent  is  a  corporation  operatins: 
a  street  railway  serving  the  city  of  Topeka  and  the  city  of  Oakland, 
both  in  Shawnee  county,  Kansas. 

In  this  action  the  complainants  state  that  the  respondent  threat- 
ened to  arVjitrarily  reduce  the  wages  allowed  by  this  tribunal  in  the 
former  order  on  the  theory  that  the  order  made  therein  has  expired 
bj'  its  own  limitation  of  time.  A  temporary  order  was  made  in  the 
case,  directing  the  respondent  to  continue  the  former  wage  scale 
until  the  matter  could  be  heard  and  adjusted.  No  extended  opinion 
in  this  case  is  necessary,  but  a  few  of  the  facts  showing  the  present 
condition  of  the  parties,  perhaps,  should  be  stated. 

Prior  to  the  order  of  August  7,  1920,  the  complainants  had  been 
working  at  an  extremely  low  wage  and  the  "^turn-over"  in  the  per- 
sonnel was  great  and  constantly  growing.  Men  could  not  support 
themselves  and  families  upon  the  wage  that  they  were  receiving,  and 
in  consideration  of  such  conditions  this  tribunal  increased  the  wages 
as  aforesaid.  At  that  time  the  cost  of  living  was  extraordinarily 
high.     It  is  now  the  contention  of  the  respondent  that  living  costs 

•  The  defendant  having  refused  to  obey  the  order  of  the  Court  of  Industrial 
Relations,  the  latter  brought  an  original  proceeding  in  mandamus  in  the  Supreme 
Court  of  Kansas  to  compel  obedience  to  the  order  under  Sec.  12  of  the  Industrial 
Court  Act.  The  Kansas  Supreme  Court  in  effect  held  the  order  binding  and  en- 
forceable. Court  of  Industrial  Relations  v.  Chas.  Wolff  Packing  Co.,  109  Kan. 
629. 


944  COMPULSORY  ARBITRATION  [CHAP.  XIX 

have  decreased  approximately  20  per  cent,  and  that  its  revenues  are 
not  sufficient  to  enable  it  to  pay  the  increased  wages  and  provide 
operating  expenses  and  a  fair  return  upon  the  investment.  The 
evidence  shows  a  reduction  in  living  costs  since  the  former  order. 
Government  statistics,  apparently  reliable,  show  such  reduction  to 
be  approximately  20  per  cent,  but  the  evidence  taken  as  to  local 
conditions  fails  to  show  that  the  reduction  in  wholesale  prices,  as 
evidenced  b}^  such  statistics,  has  reached  the  consumer  to  the  full 
extent.  However,  the  evidence  does  show  that  in  Topeka,  Kan., 
living  costs  have  decreased  since  August,  1920,  in  a  percentage  rang- 
ing from  10  to  15.  .  .  . 

The  employees  of  the  respondent  must  not  be  compelled  to  work 
for  an  inadequate  wage  in  order  that  their  fellow  citizens  may  enjoy 
cheap  transportation.  Such  a  state  of  affairs  would  be  an  injustice 
to  the  employees  and  would  ultimately  result  in  the  destruction  and 
discontinuance  of  the  business.  In  view,  however,  of  the  reduction 
in  living  costs,  it  is  believed  that  some  reduction  in  the  wages  al- 
lowed to  the  complainants  may  be  made  at  this  time  without  a 
serious  injustice  to  them.  In  consideration  of  these  matters,  this 
tribunal  believes  that  the  following  scale  of  wages,  under  the  cir- 
cumstances, is  a  fair  wage  to  be  paid  to  the  complainants,  and  that 
this  wage,  under  the  changed  conditions  as  to  living  costs,  has  as 
great  a  purchasing  value  and  will  provide  as  many  of  the  necessaries 
and  comforts  of  life  as  the  former  wage  did  at  the  time  it  was  in- 
stituted : 

Two-man  cars.        One-man  cars. 
Per  hour  Per  hour 

First  six  months $0.40  $0.43 

Second  six  months .41  .44 

Third  six  months .42  .45 

Fourth  six  months .43  .46 

Fifth  six  months  and  after .47  .50 

.  .  .  By  agreement  of  the  parties  the  wage  herein  provided  shall 
continue  until  December  31,  1921;  but  the  wage  herein  fixed  is,  un- 
der the  industrial  law,  subject  to  further  adjustment  at  any  time  after 
a  sixty  days'  trial,  upon  the  application  of  either  party. 

Said  wage  should  not  be  changed  by  either  party  arbitrarily  at 
the  expiration  of  the  time  above  stated,  but  may  be  changed  by 
agreement,  with  the  approval  of  the  court,  or  in  case  of  failiu'e  to 
agree,  before  a  change  is  made  the  matter  should  be  submitted  to 
this  tribunal  for  adjustment  in  order  that  industrial  strife  will  be 
prevented. 

An  order  will  be  issued  accordingly. 

Judges  McDermott  and  Crawford  concur. 


SECT.  IV]  KANSAS   INDUSTRIAL  COURT  945 

THE  STATE  v.  HOWAT 
Supreme  Court  of  Kansas.     1921 

109  A'an.  376 

BuRCH,  J.  Alexander  Howat  and  others  were  adjudged  guilty 
of  contempt  of  the  District  Court,  and  appeal. 

At  a  special  meeting  of  the  legislature  held  in  January,  1920,  an 
act  was  passed  declaring  that  the  manufacture  or  preparation  of 
food  products,  the  manufacture  of  clothing,  the  mining  or  produc- 
tion of  fuel,  and  the  transportation  of  food,  clothing,  and  fuel,  are 
industries  affected  with  a  public  interest;  that  reasonable  con- 
tinuity and  efficiency  in  the  operation  of  such  industries  affect  the 
living  conditions  of  the  people;  and  that  consequently  such  indus- 
tries are  subject  to  state  supervision,  for  the  purpose  of  preserving 
the  public  peace,  protecting  the  public  health,  preventing  industrial 
strife,  disorder,  and  waste,  and  promoting  the  general  welfare.  A 
supervising  body  was  created,  called  the  Court  of  Industrial  Rela- 
tions. Persons,  firms,  corporations,  and  associations  wsre  for})idden 
willfully  to  hinder,  delay,  limit,  or  suspend  continuous  and  efficient 
operation  of  the  supervised  industries,  contrary  to  the  act  or  for  the 
purpose  of  evading  any  of  its  provisions.  .  .  . 

The  United  Mine  Workers  of  America  is  a  voluntary  association 
of  miners  and  workers  in  mines,  organized  as  a  labor  union,  for  the 
purpose  of  furthering  the  interests  of  members  in  the  United  States. 
District  No.  14  of  the  United  Mine  Workers  of  America  includes 
the  counties  of  Crawford,  Cherokee,  and  Osage,  in  which  the  bulk  of 
the  coal  mined  in  Kansas  is  produced.  In  April,  1920,  the  officers 
of  District  No.  14  were:  President,  Alexander  Howat ;  vice-president, 
August  Dorchy;  secretary-treasurer,  Thomas  Harvey;  all  of  Pitts- 
burg, Kan.  Members  of  the  board  of  directors  or  trustees  were 
James  Mcllwrath,  John  Fleming,  William  Jenkins,  Amos  Stander- 
ing,  and  John  Billings.  Willard  Titus  had  been  elected  as  successor 
to  William  Jenkins.  Thomas  Cunningham  was  a  traveling  auditor 
and  agent.  On  April  5,  1920,  the  attorney-general  commenced  an 
action  on  behalf  of  the  state  against  the  associations  and  persons 
named  and  other  persons  who  were  stated  to  be  officers  and  mem- 
bers of  local  unions  of  District  No.  14,  to  enjoin  them  from  inter- 
fering with  the  operation  of  coal  mines  in  the  counties  named  and 
causing  the  production  of  coal  to  be  delayed,  hindered,  and  stopped. 
The  petition  alleged  that  the  defendants  were  conspiring  and  con- 
federating among  themselves  and  with  others  to  violate  the  act 
creating  the  Court  of  Industrial  Relations.  The  defendant,  Howat, 
had  publicly  announced  that  he  proposed  to  fight  the  statute  with 
a  force  of  12,000  miners  in  Kansas,  regardless  of  consequences,  and 
the  miners  had  pledged  him  theu'  support,  to  the  end  that  the  force 
and  effect  of  the  statute  might  be  nullified.    The  conspiracy  was  to 


946  COMPULSORY  ARBITRATION  [CHAP.  XIX 

be  executed  by  calling  a  general  strike  of  mine  workers  in  the  mines 
in  Kansas,  thereby  causing  the  production  of  coal  to  be  stopped. 
Howat  had  announced  that  he  was  about  to  call  such  a  strike,  and 
would  do  so  early  in  April.  The  result  would  be  to  prevent  the 
carrying  on  of  business,  commerce,  industries,  occupations,  and  work 
in  the  state,  to  hinder,  lessen,  and  stop  the  production,  manufacture, 
and  transportation  of  the  necessaries  of  life,  and  to  inhibit  even  domes- 
tic and  household  activities  of  the  people  of  the  state.  The  State  of 
Kansas  owns  and  uses  buildings  and  other  property,  conducts  a  va- 
riety of  institutions,  educational,  penal,  and  charitable,  and  operates 
certain  industries,  in  the  exercise  of  its  governmental  functions.  To 
accomplish  its  ends,  it  purchases  and  uses  more  than  100,000  tons 
of  coal  yearly,  and  one  of  the  results  of  the  conspiracj'  would  be  to 
cut  off  this  suppty  of  fuel.  Pursuant  to  the  conspiracy,  members  of 
labor  unions  had  already  simultaneously  quit  work  and  caused  mines 
to  be  shut  down,  assigning  as  a  reason,  opposition  to  the  law  creating 
the  Court  of  Industrial  Relations,  coupled  with  some  cause  of  minor 
significance.  The  Court  of  Industrial  Relations  had  taken  jurisdic- 
tion of  a  controversy  between  employers  and  miners,  and  in  the 
exercise  of  such  jurisdiction  had  subpoenaed  Howat  and  others  to 
testify  as  witnesses.  They  had  refused  to  obey  the  subpoenas,  and 
subp-nenas  for  like  purposes  issued  by  the  district  court,  and  had 
baen  committed  to  jail  for  contempt  of  court,  there  to  remain  until 
they  should  submit  to  the  law  and  give  their  testimony.  The  con- 
stitution and  by-laws  of  District  No.  14  had  been  amended  to  im- 
pose a  fine  of  $50  for  each  offense  on  any  member,  committee  or  local 
officer  who  would  be  privy  to  referring  a  controversy  to  the  Court 
of  Industrial  Relations,  and  imposing  a  fine  of  8^5000  on  any  district 
officer  of  District  No.  14  who  would  be  a  party  to  the  reference  of 
any  grievance  to  the  Court  of  Industrial  Relations.  These  amend- 
ments enabled  Howat  and  his  associates  to  impose  their  will  upon 
mine  workers.  Without  continuous  and  effective  operation  of  the 
coal  mines,  all  the  loss,  suffering,  and  irreparable  injury  of  the  coal 
strike  of  December,  1919,  fresh  in  the  minds  of  the  people  and  of 
the  defendants,  would  be  repeated;  and  the  state  was  without  ade- 
quate remedy  at  law.  The  prayer  was  for  a  temporary  injunction 
and,  upon  final  hearing,  for  a  permanent  injunction,  enjoining  the 
defendants  from  furtlier  consi)iring  with  each  other,  and  from  carry- 
ing out  any  conspiracy  to  interfere  with  the  operation  of  coal  mines 
in  the  counties  named,  to  limit  production,  to  cause  the  workers  to 
leave  employment,  to  influence  them  to  quit  their  employment, 
and  to  cause  the  production  of  coal  to  be  delayed,  hindered,  and 
stopped. 

A  temporary  injunction  was  issued,  the  petition  was  amended  and 
supplemented,  answers  were  filed,  and  upon  final  hearing  the  court 
found  uU  \\n)  facts  contained  in  the  plaintiff's  pleadings  to  be  true, 
found  all  the  issues  joined  in  favor  of  the  plaintiff  and  against  the 


SECT.  IV]  KANSAS  INDUSTRIAL   COURT  947 

defendants,  and  entered  a  decree  in  favor  of  the  state,  making  the 
temporary  injunction  permanent. 

In  February,  1921,  the  officers  of  the  district  board  of  District 
No.  14  called  a  strike  in  two  mines  of  the  Clcorge  K.  IMackie  Iniel  Co., 
one  in  Crawford  county,  and  one  in  Cherokee  county.  The  order 
was  transmitted  to  local  unions  Nos.  498  and  310,  and  by  their 
officers  communicated  to  the  members,  who,  obedient  to  the  order, 
went  on  strike.  An  affidavit  stating  the  facts,  and  charging  those 
concerned  in  calling  the  strike  with  contempt,  was  presented  to  the 
District  Court  on  February  7.  After  a  hearing,  the  court  found  there 
was  reasonable  ground  for  believing  the  defendants  named  in  the 
affidavit  had  violated  the  commands  of  the  injunction,  and  ordered 
their  arrest.  They  were  arrested  and  brought  into  court,  and  were 
given  an  opportunity  to  purge  themselves.  Harvey,  Cunningham, 
Billings  and  Standering  were  dismissed,  on  the  ground  their  state- 
ments showed  they  were  not  guilty  of  the  charge.  The  court  directed 
the  state  to  file  forthwith  accusation  against  the  defendants,  Howat, 
Dorchy,  Mcllwrath,  Fleming,  Titus,  and  Maxwell,  and  fixed  a  time 
for  answer.  The  defendants  answered  and,  after  a  hearing  before 
the  court,  without  a  jury,  the  court  found  the  facts  stated  in  the 
accusation  to  be  true  as  to  the  defendants  last  named,  found  them 
to  be  guilty  of  violation  of  the  injunction  and  of  contempt  of  court, 
and  ordered  that  they  be  confined  in  the  jail  of  Craw^ford  county  for 
the  period  of  one  year,  and  pay  the  costs  of  the  prosecution. 

The  assignments  of  error  present  questions  relating  to  regularity 
of  the  contempt  proceeding,  relating  to  validity  of  the  violated  in- 
junction, relating  to  validity  of  the  act  creating  the  Court  of  Indus- 
trial Relations  under  the  Constitution  of  the  State  of  Kansas,  and 
relating  to  validity  of  the  act  under  the  Constitution  of  the  United 
States.  .  .  . 

The  general  finding  on  which  the  injunction  was  allowed  included 
a  finding  that  the  state  would  be  prejudiced  in  the  use  of  property 
which  it  held  in  the  capacity  of  owner.  Conviction  and  incarceration 
of  the  defendants  would  not  get  coal  for  the  various  institutions, 
educational,  charitable,  and  correctional,  which  the  state  maintains 
in  its  own  buildings,  upon  its  own  land.  The  authorities  are  in  sub- 
stantial accord  that  this  special  interest  authorized  the  state  to  apply 
for,  and  authorized  the  district  court  to  grant,  the  injunction;  but 
this  court  holds  that,  aside  from  this  indisputable  ground,  and  with- 
out aid  of  the  statute  expressly  authorizing  actions  of  injunction  in 
the  name  of  the  state  to  suppress  public  nuisances  (Gen.  Stat.  1915, 
sec.  7163,  as  amended  by  Laws  of  1917,  ch.  247,  sec.  1),  the  district 
court  was  possessed  of  power  to  grant  the  injunction.  .  .  . 

It  is  contended  the  act  creating  the  Court  of  Inckistrial  Relations 
is  void  because  sec.  12  undertakes  to  confer  on  this  court  original 
jurisdiction  additional  to  that  permitted  by  sec.  3  of  article  3  of  the 
constitution,  which  reads  as  follows: 


948  COMPULSORY  ARBITRATION  [CHAP.  XIX 

"The  Supreme  Court  shall  have  original  jurisdiction  in  proceed- 
ings in  quo  warranto,  mandamus,  and  habeas  corpus;  and  such  ap- 
pellate jurisdiction  as  may  be  provided  by  law."  (Gen.  Stat.  1915, 
sec.  172.) 

The  Court  of  Industrial  Relations  is,  in  fact,  a  public-service  com- 
mission, the  word  "court"  having  been  employed  merely  as  a  matter 
of  legislative  strateg5^  The  production,  manufacture  and  distribu- 
tion of  food,  clothing,  and  fuel,  being  industries  affected  with  a  public 
interest,  are  made  subject  to  regulation  in  the  same  manner  as  those 
industries  which  have  commonl}^  been  designated  public  utilities. 
Action  by  the  Court  of  Industrial  Relations  would  necessarily  touch 
the  subjects  of  liberty  and  property,  and  in  order  to  safeguard  them 
from  infringement  and  meet  all  the  requirements  of  due  process  of 
law,  a  judicial  review  of  orders  of  the  administrative  body  was  pro- 
vided for  by  sec.  12.  Resort  to  this  court  was  authorized  in  terms 
which  afford  opportunity  for  the  determination  of  issues  upon  the 
court's  independent  judgment,  both  with  respect  to  the  law  and  the 
facts.  (Ohio  Valley  Co.  v.  Ben  Avon  Borough,  253  U.  S.  287.)  The 
appellate  jurisdiction  of  this  court  not  being  available  because  the 
Court  of  Industrial  Relations  is  a  non-judicial  body,  its  constitu- 
tional jurisdiction  in  mandamus  was  utilized.  .  .  . 

It  is  said  the  act  creating  the  Court  of  Industrial  Relations  is 
void  because  it  contravenes  the  Fourteenth  Amendment  to  the  Con- 
stitution of  the  United  States,  in  that  it  destroys  liberty  of  contract 
and  permits  involuntary  servitude  on  the  part  of  workingmen. 

The  question  which  presented  itself  to  the  mind  of  the  legislature 
may  be  indicated. 

Employers  and  employees  disagree  about  how  the  product  of 
their  joint  contributions  to  industry  shall  be  divided.  In  the  last 
analysis,  hours,  working  conditions,  recognition  of  union,  etc., 
revolve  about  this  fundamental  subject  of  grievance.  The  subject 
is  of  great  importance  to  the  employer.  It  is  of  even  greater  impor- 
tance to  the  employee,  because  on  wages  depend  food,  clothing, 
and  shelter;  recreation,  and  the  details  of  daily  living;  the  value  of 
the  worker  to  the  conununity  in  which  he  lives;  and  even  the  length 
of  time  he  will  live.  Disagreements  become  acute,  the  contestants 
become  hostile  to  each  other,  sometimes  each  one  resorts  to  force, 
and  the  public,  the  great  employer  of  both  laljor  and  capital,  suflfers 
grievously.   .   .   . 

The  following  is  a  partial  list  of  the  more  important  strikes  and 
lockouts  shown  by  the  government  report  for  1919: 

"A  general  strike  in  Tacoma  and  Seattle  in  February  in  sympathy 
with  the  metal-trades  strikers,  in  which  ()(),()()()  pcM'sons  were  involved; 
Oo.OOO  employees  in  the  Chicago  stockyards  struck  in  August;  100,- 
OOIJ  longshoremen  along  the  Atlantic  coast  struck  in  October;  100,- 
000  employees  in  the  shipyards  of  New  York  City  and  vicinity 
struck  in  October;    115,000  members  of  the  building  trades  were 


SECT.  IV]  KANSAS  INDUSTRIAL   COURT  949 

locked  out  in  Chicago  in  July;  125,000  in  the  l)uildinp;  trades  in 
New  York  City  struck  in  February;  250,000  railroad  shop  workers 
struck  in  August;  367,000  iron  and  steel  workers  struck  in  Septem- 
ber; and  435,000  bituminous  coal  miners  struck  in  November.  The 
number  of  persons  concerned  in  these  nine  strikes  and  lockouts  was 
upward  of  1,600,000,  while  the  total  number  of  persons  involved  in 
strikes  and  lockouts  during  1919  was  4, 112, .507."  {Monthly  Labor 
Review,  June,  1920,  p.  200.) 

The  direct  losses  in  money  amounted  to  stupendous  sums.  William 
Z.  Foster,  who  conducted  the  steel  strike,  says  that  struggle  alone 
cost  a  billion  dollars.  The  indirect  losses  were  beyond  computa- 
tion. .  .  . 

Human  progress  is  essentially  increase  in  social  well-being,  and 
the  primary  condition  to  social  well-being  is  abolition  of  strife.  The 
Kansas  statute  provides  a  permanent  board  of  state  officers,  sitting 
all  the  time,  to  receive  submission  of  differences  and  adjust  them, 
without  expense  to  either  disputant.  Members  of  the  board  are 
not  arbitrators.  In  actual  practice,  a  board  of  arbitration  is  too 
frequently  a  jury  packed  on  both  sides.  In  any  event,  its  verdict 
is  a  compromise,  and  the  public  interest  is  not  taken  into  considera- 
tion. The  Court  of  Industrial  Relations  sits  to  administer  industrial 
justice,  and  its  facilities  for  doing  so  are  complete.  Its  command 
of  data  and  of  aids  to  sound  conclusion  includes  everything  that 
both  business  and  government  are  able  to  supply.  It  supplants  no 
type  of  shop  committee,  no  mutual-interest  department  of  any 
business  organization,  and  no  principle  of  voluntary  adjustment. 
Its  intention  is  to  prevent  strife  in  case  of  disagreement,  by  promul- 
gation of  just,  reasonable  and  lawful  regulations,  and  it  must  be 
classified  as  an  instrument  of  social  progress.  With  a  tribunal  of 
this  kind  to  appeal  to,  disputants  have  no  moral  right,  and  have 
no  economic  excuse,  for  fighting  after  failing  to  agree.  .  .  . 

The  government  of  District  No.  14,  United  Mine  Workers  of 
America,  fines  its  officers  $5000  each,  and  fines  its  subjects  S50  each, 
for  recognizing  the  Court  of  Industrial  Relations.  In  case  of  disagree- 
ment, there  is  no  remedy  but  fight.  To  a  fair-minded  person  stand- 
ing in  the  midst  of  the  ruin  wrought  by  a  strike,  it  would  seem  the 
state  might  be  interested  in  the  mining  business,  in  the  miner,  and 
in  the  man  who  needs  coal,  and  might  lawfully  do  something  for 
each,  before  conflagration  is  started  by  the  strike  torch  —  the  in- 
evitable conflagration,  whether  the  torch  be  applied  by  mine  owner 
or  by  striker.  .  .  .  Must  Kansas  be  driven  to  operate  coal  mines 
by  volunteers,  under  the  protection  of  troops,  in  order  to  keep  her 
public  institutions  going,  and  in  order  that  her  people  may  have 
fuel  in  winter?  .  .  . 

It  is  said  that  a  man  is  a  slave  unless  he  may  quit  work.  The 
assertion  is  ambiguous.  If  it  refers  to  striking,  which  is  not  abandon- 
ment of  the  emploj^er's  service  at  all,  it  is  untrue.     If  it  refers  to 


950  COMPULSORY  ARBITRATION  [CHAP.  XIX 

leaving  the  employer's  service,  it  is  still  untrue.  A  train  crew  may 
rightfully  be  forbidden  to  leave  a  trainload  of  passengers  between 
stations.  Probably,  identification  of  striking  with  leaving  the  em- 
ployer's service  under  circumstances  not  so  exceptional,  is  intended. 
In  that  sense  the  assertion  is  an  abuse  of  language  and,  if  made  by  a 
person  capable  of  clarity  of  thought  and  clarity  of  expression,  can 
accomplish  no  purpose  except  to  obscure  the  truth. 

It  is  said  the  worker  has  a  right  to  leave  his  emploj-er's  service, 
and  what  he  may  rightfully  do,  he  may  do  with  others  having  the 
same  right.  For  obvious  reasons  of  public  policy,  the  privilege  to 
discontinue  personal  service  must  be  unrestrained.  Every  purpose 
of  the  policy  is  fulfilled  by  exercise  of  the  privilege.  When  a  worker 
undertakes  to  induce  others  to  break  their  relationship  with  their 
employer,  he  steps  outside  the  limits  of  the  privilege  which  is  essen- 
tial to  selfhood.  He  interferes  in  the  affairs  of  others,  and  in  a  matter 
which  bears  no  relation  to  his  own  personal  privilege  to  work  or  quit 
work.  The  consequences  are  not  those  which  follow  from  exercise 
of  his  own  privilege,  and  they  are  to  be  appraised  without  reference 
to  that  privilege.  When  a  worker  confederates  with  others  to  leave 
service  in  a  body,  he  steps  outside  the  limits  of  privilege  essential 
to  selfhood.  .  .  . 

The  law  applicable  to  the  facts  may  be  sketched  as  briefly  as 
possible.  Some  centuries  ago  it  was  found  expedient,  in  the  coun- 
try from  which  our  legal  institutions  were  derived,  to  regulate  busi- 
ness in  the  interest  of  the  public  welfare.  Some  regulations  were 
unwise  and  ineffective.  Others  served  their  purpose,  and  then  fell 
into  disuse  because  of  changed  conditions.  The  trend  of  economic 
development  was  such  that  for  a  long  time  regulation  of  business 
was  practically  dormant,  and  economic  theory  was  framed  accord- 
ingly; but  there  never  was  a  time  when  legal  theory  forbade  regula- 
tion, if  public  inconvenience  and  pviblic  oppression  demanded  it. 
Sometimes  it  was  public  health  which  required  intervention,  and 
sometimes  public  safety;  but  business  was  frequently  regulated 
simply  because  it  was  "affected  with  a  public  interest."  Our  colonial 
history  furnishes  instances  of  such  regulation,  and  it  was  not  un- 
familiar to  framers  of  the  Constitution  of  the  United  States.  When 
it  is  said,  therefore,  that  the  Act  of  1920  is  a  discredited  and  dis- 
carded form  of  interference  with  private  business,  brouglit  from  the 
lumber  room  of  the  remote  past,  the  essence  of  the  matter  is  not 
touched.  C)rganized  government  has  never  been  without  power  to 
make  regulations  whenever  the  conduct  of  business  threatened  public 
harm,  and  the  power  has  been  exercised  as  occasion  nnjuired.  Reser- 
vation to  the  states,  in  the  Constitution  of  the  Unit(Ml  States,  of  th(^ 
police  power,  and  limitations  on  exercise  of  that  power,  are  subjects 
of  familiar  law.  In  1876,  the  decision  in  Munn  v.  Illinois,  94  U.  S. 
113,  was  rendered.  That  decision  was  followed  by  determined 
reactionary  efforts  to  limit  its  application  to  definite  classes  of  busi- 


SECT.  IV]  KANSAS   INDUSTRIAL   COURT  951 

ness  —  business  involving  uso  of  property,  business  enjoj'ing  a 
franchise,  business  enjoying  a  monopoly.  These  and  other  efforts 
to  limit,  and  even  to  overthrow,  the  doctrine  of  the  Munn  case,  failed, 
and  all  the  arguments  l)v  which  they  were  sustained  were  refuted 
in  the  opinion  in  the  case  of  German  Alliance  Ins.  Co.  v.  Kansas, 
233  U.  S.  389  —  a  landmark  in  the  progress  of  the  law  almost  as 
noteworthy  as  the  case  of  Munn  v.  Illinois.  .  .  . 

The  legislature  was  of  the  opinion  the  industries  specified  in  sec.  3 
of  the  Act  of  1920  are  affected  with  a  public  interest,  and  so  declared. 
The  declaration  did  not  make  them  so.  Whether  they  are  or  not 
depends  on  their  relation  to  public  interest.  Without  presenting 
the  facts  of  which  the  court  takes  judicial  knowledge  concerning  the 
peculiar  relation  the  product  of  the  Kansas  coal  mines  bears  to  the 
state's  fuel  supply,  and  without  discussing  further  the  peculiar 
conditions  under  which  production  is  accomplished,  the  court  con- 
cludes the  business  of  producing  coal  bears  an  intimate  relation  to 
the  public  peace,  good  order,  health,  and  welfare;  that  such  busi- 
ness is  affected  with  a  public  interest;  and  that  such  business  may 
be  regulated,  to  the  end  that  reasonable  continuity  and  efficiency  of 
production  may  be  maintained. 

The  mills  of  Kansas  stand  today  "at  the  gateway  of  commerce" 
more  prominently  than  did  private  elevators  forty-five  years  ago. 
Great  packing  plants,  belonging  to  what  the  Federal  Trade  Com- 
mission calls  the  "Big  Five,"  are  located  in  Kansas.  Many  smaller 
packing  companies  operate  plants  within  the  state,  and  the  meat- 
packing industry  effectively  dominates  not  only  a  food  supply,  but 
one  of  the  great  industries  of  the  state  —  the  live-stock  industry. 
There  are  other  reasons  for  regulation,  which  need  not  be  specified 
because  the  issues  in  this  case  involve  production  of  fuel  only;  but 
the  manufacture  of  food  products  is  mentioned  to  show  the  pre- 
carious ground  on  which  the  state  stands  in  respect  to  its  supply  of 
the  necessities  of  life  in  case  of  emergency. 

The  business  of  producing  coal  being  affected  with  a  public  in- 
terest to  an  extent  authorizing  reasonable  regulation,  is  the  Act  of 
1920  such  a  regulation?  The  defendants  contend  that  it  is  not, 
because  it  destroys  liberty  of  contract. 

The  offending  provision  of  the  act  is  sec.  9.  The  section  begins 
with  the  recognition  of  approved  general  principles  which  ought  to 
be  applied  in  the  regulation  of  industry.  It  then  makes  acknowledg- 
ment of  the  right  of  free  choice  of  employment  and  of  the  right  to 
make  and  carry  out  fair,  just  and  reasonable  contracts  and  agree- 
ments of  employment.    The  section  concludes  as  follows: 

"If,  during  the  continuance  of  any  such  employment,  the  terms  or 
conditions  of  any  such  contract  or  agreement  hereafter  entered  into, 
are  by  said  court,  in  any  action  or  proceeding  properly  before  it 
under  the  provisions  of  this  act,  found  to  be  unfair,  unjust  or  un- 
reasonable, said  Court  of  Industrial  Relations  may  by  proper  order 


952  COMPULSORY  ARBITRATION  [CHAP.  XIX 

SO  modify  the  terms  and  conditions  thereof  so  that  they  will  be  and 
remain  fair,  just  and  reasonable  and  all  such  orders  shall  be  enforced 
as  in  this  act  provided."  .  .  . 

Sec.  9  does  not  authorize  a  general  revision  of  labor  contracts. 
In  congruity  with  other  sections,  it  does  no  more  than  provide  that 
contracts  shall  not  thwart  achievement  of  the  public  purposes  of 
the  statute.  No  contract  may  be  modified  except  in  an  action  or 
proceeding  properly  before  the  court,  that  is,  an  action  or  proceed- 
ing relating  to  a  controversy.  If,  in  dealing  with  the  emergency 
created  by  a  controversy,  the  court  encounters  a  contract  which 
would  hamper  the  making  of  a  necessary  order,  the  contract  may  be 
treated  as  any  other  element  of  the  situation.  No  contract  is  to  be 
regarded  as  unfair,  unjust,  or  unreasonable,  that  is  not  an  impedi- 
ment to  settlement  of  a  controversy,  and  orders  respecting  con- 
tracts of  the  obstructive  character  are  merely  ancillary  to  deter- 
mination of  the  controversy.  The  power  exercised  in  making  such 
orders  is  the  same  power  which  takes  entire  charge  of  a  mine  and 
operates  it  during  an  emergency. 

Sec.  17  makes  unlawful  conspiracy  to  quit  employment  and  to 
induce  others  to  quit,  picketing,  and  the  bludgeoning  of  those  who 
want  to  work,  whether  employees  or  not,  by  abuse,  intimidation, 
and  threat,  for  the  purpose  of  accomplishing  that  which  the  statute 
was  designed  to  prevent.  It  is  said  this  section  destroys  collective 
bargaining.  Collective  bargaining  is  bargaining  by  an  organization 
or  group  of  workmen,  on  behalf  of  its  members,  with  the  employer. 
That  privilege  is  not  only  protected,  but  may  be  exercised,  and  is 
expected  to  be  exercised,  even  to  the  extent  of  altering  orders  of  the 
Court  of  Industrial  Relations.  What  the  defendants  contend  for 
is  license  to  conspire  to  injure  the  public. 

It  is  said  the  Act  of  1920  is  void  because  it  trenches  on  personal 
liberty.  The  personal  liberty  contended  for  is  liberty  to  leave  the 
emploj^er's  service.  All  the  leading  cases  in  which  the  principle 
involved  have  been  discussed  are  cited.  It  is  not  necessary  to  re- 
view them.  The  statute  expressly  guards  the  privilege  of  any  em- 
plo^'ee  to  quit  his  employment  at  any  time.  He  may  quit  before 
controversy  arises,  when  controversy  arises,  while  controversy  is 
raging,  and  after  controversy  has  been  adjusted.  As  many  others  as 
desire  may  do  likewise,  and  they  may  do  so  as  the  result  of  mutual- 
interest  consultations.  No  employee  may,  however,  transgress  the 
limits  of  his  personal  privilege,  as  defined  earlier  in  this  opinion, 
for  the  purpose  of  limiting  or  suspending  production,  contrary  to 
the  provisions  of  the  act.  .  .  . 

Heretofore  the  inchistrial  relationship  has  been  tacitly  regarded 
as  existing  between  two  members  —  inchistrial  manager,  and  in- 
chistrial worker.  They  have  joined  wholeheartedly  in  excluding 
others.  The  legislature  proceeded  on  the  theory  there  is  a  third 
member  of   those   industrial   relationships   which   have   to  do  with 


SECT.  IV]  KANSAS   INDUSTRIAL  COURT  953 

production,  preparation  and  distribution  of  the  necessaries  of  life 
—  the  pubhc.  The  legislature  also  proceeded  on  the  theory  the 
public  is  not  a  silent  partner.  Whenever  the  dissensions  of  the  other 
two  become  flagrant,  the  third  member  may  see  to  it  the  business 
does  not  stop.  The  privilege  of  industrial  managers  to  organize  is 
not  disputed.  The  privilege  of  industrial  workers  to  organize  is 
expressly  recognized.  Collective  bargaining  between  the  two  or- 
ganizations is  not  only  encouraged,  but  is  in  effect  placed  on  the 
plane  of  duty.  The  rights  of  society  as  a  whole,  however,  are  dom- 
inant over  industry;  and  the  state  is  under  obligation  to  intervene 
to  compel  settlement  of  differences  whenever  failure  of  manager  and 
laborer  to  agree  endangers  the  public  safety  or  causes  general  dis- 
tress. 

The  judgment  of  the  district  court  is  affirmed.' 

>  See  also,  The  State  v.  Howat,  107  Kan.  423;  The  State  v.  Scott,  109  Kan. 
166;  Court  of  Industrial  Relations  v.  Wolff  Packing  Co.,  109  Kan.  629;  The 
State  V.  Howat,  109  Kan.  779.  In  all  of  these  cases  the  Supreme  Court  of  Kansas 
upheld  the  constitutionality  of  the  Industrial  Court  Act. 

In  Howat  v.  State  of  Kansas,  Nos.  154  and  491,  Adv.  Ops.  p.  322  (1922),  two 
cases  came  before  the  United  States  Supreme  Court  on  writs  of  error  for  the  pur- 
pose of  testing  the  constitutionality  of  the  Kansas  Court  of  Industrial  Relations 
Act.  The  Supreme  Court  held  that  in  neither  case  was  the  question  of  the  validitj' 
of  this  Act  under  the  Federal  Constitution  presented  so  as  to  permit  that  question 
to  be  passed  upon,  and  dismissed  both  writs  of  error. 


CHAPTER  XX 
WORKIVIEN'S  COMPENSATION  LAWS^ 

Section  1.     Constitutionality 

ARIZONA  EMPLOYERS'  LIABILITY  CASES 

Supreme  Court  of  the  United  States.     1919 

250  U.  S.  400 

Mr.  Justice  Pitney  delivered  the  opinion  of  the  court. 

In  each  of  these  cases,  a  workman  in  a  hazardous  industry  in  the 
State  of  Arizona,  having  received  in  the  course  of  his  employment 
a  personal  injury  through  an  accident  due  to  a  condition  or  con- 
ditions of  the  occupation,  not  caused  by  his  own  negligence  or  so 
far  as  appears  by  that  of  his  employer  or  others,  brought  action  under 
the  Employers'  Liability  Law  of  Arizona,  and  recovered  compen- 
satory damages  against  the  employer  ascertained  upon  a  considera- 
tion of  the  nature,  extent,  and  disabling  effects  of  the  injury  in  each 
particular  case.  And  the  question  is  raised  whether  the  statute 
referred  to,  as  applied  to  the  facts  of  these  cases,  is  repugnant  to 
that  provision  of  the  Fourteenth  Amendment  which  declares  that 
no  State  shall  deprive  any  person  of  life,  liberty,  or  property  with- 
out due  process  of  law,  nor  deny  to  any  person  within  its  jurisdiction 
the  equal  protection  of  the  laws. 

Art.  XVIII  of  the  constitution  of  the  State  of  Arizona  is  entitled 
"Labor,"  and  contains,  among  others,  the  following  sections: 

"Section  4.  The  common  law  doctrine  of  fellow  servants,  so  far 
as  it  affects  the  liability  of  a  master  for  injuries  to  his  servants  result- 
ing from  the  acts  or  omissions  of  any  other  servant  or  servants  of 
the  common  master  is  forever  abrogated. 

'  Because  of  the  very  extensive  nature  of  this  topic,  no  attenii)t  is  made  to 
cover  the  subject  by  the  cases  selected.  Only  a  few  typical  decisions  are  given, 
rather  to  su^Kest  the  nature  of  the  legal  problems  which  arise  in  this  field  of  law 
than  to  cover  the  field. 

The  biljliography  on  this  sul)jcct  is  very  exten.sive.  Reference  may  here  be 
made  to  P^ugenc  VVaml)augh,  Workmen's  Compensation  Acts,  25  Harv.  Law  Rev. 
129,  and  Francis  H.  Bohlcn,  A  l'rol)lem  in  the  Drafting  of  Workmen's  Compen- 
sation Acts,  25  Harv.  Law  Rev.  :i2H,  401,  517.  The  Digest  published  l)y  the 
Workmen's  Compensation  I'ublicity  Bureau  (New  York  City)  gives  a  digest, 
revis(!d  from  time  to  time,  of  the  provisions  of  the  various  state  and  federal  Work- 
men's Compensation  Laws.  See  also,  the  U.  S.  Bureau  of  Labor  Statistics,  Bulle- 
tin No.  272  (1921),  containing  a  summary  and  the  texts  of  the  Workmen's  Com- 


SECT.  I]  CONSTITUTIONALITY  955 

"Section  5.  The  defense  of  contributory  negligence  or  of  assump- 
tion of  risk  shall,  in  all  cases  whatsoever,  be  a  question  of  fact  and 
shall,  at  all  times,  be  left  to  the  jury. 

"Section  6.  The  right  of  action  to  recover  damages  for  injuries 
shall  never  be  abrogated,  and  the  amount  recovered  shall  not  be 
subject  to  any  statutory  limitation."  .  .  . 

Some  of  the  arguments  submitted  to  us  assail  the  wisdom  and 
policy  of  the  act  because  of  its  novelty,  because  of  its  one-sided 
effect  in  depriving  the  employer  of  -defenses  while  giving  him  (as 
is  said)  nothing  in  return,  leaving  the  damages  unlimited,  and  giving 
to  the  employee  the  option  of  several  remedies;  as  tending  not  to 
obviate  but  to  promote  litigation;  and  as  pregnant  with  danger  to 
the  industries  of  the  State.  With  such  considerations  this  court 
cannot  concern  itself.  Novelty  is  not  a  constitutional  objection, 
since  under  constitutional  forms  of  government  each  State  may  have 
a  legislative  body  endowed  with  authority  to  change  the  law.  In 
what  respects  it  shall  be  changed,  and  to  what  extent,  is  in  the  main 
confided  to  the  several  States;  and  it  is  to  be  presumed  that  their 
legislatures,  being  chosen  by  the  people,  understand  and  correctly 
appreciate  their  needs.  The  States  are  left  with  a  wide  range  of 
legislative  discretion,  notwithstanding  the  provisions  of  the  Four- 
teenth Amendment;  and  their  conclusions  repecting  the  wisdom  of 
their  legislative  acts  are  not  reviewable  by  the  courts. 

We  have  been  called  upon  recently  to  deal  with  various  forms  of 
workmen's  compensation  and  employers'  liability  statutes.  Second 
Employers'  Liability  Cases,  223  U.  S.  1,  47-53;  New  York  Central 
R.  R.  Co.  V.  White,  243  U.  S.  188,  196,  et  seq.;  Hawkins  v.  Bleaklv, 
243  U.  S.  210;  Mountain  Timber  Co.  v.  Washington,  243  U.  S.  219; 
Middleton  v.  Texas  Power  &  Light  Co.,  249  U.  S.  152.  These  de- 
cisions have  established  the  propositions  that  the  rules  of  law  con- 
cerning the  employer's  responsibility  for  personal  injury  or  death 
of  an  employee  arising  in  the  course  of  the  employment  are  not 
beyond  alteration  by  legislation  in  the  public  interest;  that  no  per- 
son has  a  vested  right  entitling  him  to  have  these  any  more  than 
other  rules  of  law  remain  unchanged  for  his  benefit;  and  that,  if 
we  exclude  arbitrary  and  unreasonable  changes,  liability  may  be 
imposed  upon  the  employer  without  fault,  and  the  rules  respecting 
his  responsibility  to  one  employee  for  the  negligence  of  another 

pensation  Legislation  of  the  United  States  and  Canada.  A  good  discussion  of  the 
general  subject  will  be  found  in  Commons  and  Andrews,  Principles  of  Labor 
Legislation  (1920,  ed.),  Chap.  VIII  (bibliography,  pp.  519-524).  Various  in- 
formative articles  and  notes  upon  the  subject  are  also  published  from  month 
to  month  in  the  U.  S.  Monthly  Labor  Review. 

For  a  summary  of  European  Workmen's  Compensation  Acts,  see  U.  S.  Bureau 
of  Labor  Statistics,  Bulletins  No.  203  (1917),  pp.  297-350;  No.  243  (1918),  pp. 
96-102.  The  following  Bulletins  of  the  U.  S.  Bureau  of  Labor  Statistics  maj'  also 
be  consulted:  Nos.  90,  91,  92,  96,  101,  102,  103,  107,  HI,  126,  155,  185,  201,  210, 
212,  217,  240,  248.  —  Ed. 


956  workmen's  compensation  laws         [chap,  xx 

and  respecting  contributory  negligence  and  assumption  of  risk  are 
subject  to  legislative  change. 

The  principal  contention  is  that  the  Arizona  Employers'  Liability 
Law  deprives  the  employer  of  property  without  due  process  of  law, 
and  denies  to  him  the  equal  protection  of  the  laws,  because  it  im- 
poses a  liability  without  fault,  and,  as  is  said,  without  equivalent 
protection.  The  statute,  in  respect  of  certain  specified  employments 
designated  as  inherently  hazardous  and  dangerous  to  workmen  — 
and  reasonably  so  described  —  imposes  upon  the  emploj^er,  without 
regard  to  the  question  of  his  fault  or  that  of  any  person  for  whose 
conduct  he  is  responsible,  a  liability  in  compensatory  damages  — 
excluding  all  such  as  are  speculative  or  punitive  (Arizona  Copper 
Co.  V.  Burciaga,  177  Pac.  Rep.  29)  —  for  accidental  personal  injury 
or  death  of  an  employee  arising  out  of  and  in  the  course  of  the  em- 
ployment and  due  to  a  condition  or  conditions  of  the  occupation, 
in  cases  where  such  injury  or  death  of  the  employee  shall  not  have 
been  caused  by  his  own  negligence.  .  .  . 

In  effect,  the  statute  requires  the  employer,  instead  of  the  em- 
ployee, to  assume  the  pecuniary  risk  of  injury  or  death  of  the  employee 
attributable  to  hazards  inherent  in  the  employment  and  due  to  its 
conditions  and  not  to  the  negligence  of  the  employee  killed  or  in- 
jured. .  .  . 

We  are  unable  to  say  that  the  Employers'  Liability  Law  of  Ari- 
zona, in  requiring  the  employer  in  hazardous  industries  to  assume 
—  so  far  as  pecuniary  consequences  go  —  the  entire  risk  of  injury 
to  the  employee  attributable  to  accidents  arising  in  the  course  of  the 
employment  and  due  to  its  inherent  conditions,  exceeds  the  bounds 
of  permissible  legislation  or  interferes  with  the  constitutional  rights 
of  the  employer.  The  answer  that  the  common  law  makes  to  the 
hardship  of  requiring  the  employee  to  assume  all  consequences,  both 
personal  and  pecuniary,  of  injuries  arising  out  of  the  ordinary  dan- 
gers of  the  occupation  is  that  the  parties  enter  into  the  contract  of 
employment  with  these  risks  in  view,  and  that  the  consequences 
ought  to  be,  and  presumably  are,  taken  into  consideration  in  fixing 
the  rate  of  wages.  Chicago,  Milwaukee  &  St.  Paul  Ry.  Co.  v.  Ross, 
112  U.  S.  377,  383;  Northern  Pacific  R.  R.  Co.  v.  Herbert,  116  U.  S. 
642,  647;  New  York  Central  R.  R.  Co.  v.  White,  243  U.  S.  188,  199; 
Farwell  v.  Boston  &  Worcester  R.  R.  Corp.,  4  Mete.  49,  57.  In  like 
manner  the  employer,  if  required  —  as  he  is  by  this  statute  in  some 
occupations  —  to  assume  the  pecuniary  loss  arising  from  such  in- 
jury to  the  employee,  may  take  this  into  consideration  in  fixing  the 
rate  of  wages;  besides  which  he  has  an  opportunity,  which  the  em- 
ployee has  not,  to  charge  the  loss  as  a  part  of  th(^  cost  of  the  product 
of  the  industry.  .  .  . 

The  statute  requires  that  compensation  shall  be  paid  to  the  in- 
jured workman  or  his  dependents,  because  it  is  upon  them  that  the 
first  brunt  of  the  loss  falls;   and  that  it  shall  be  paid  by  the  em- 


SECT.  I]  CONSTITUTIONALITY  957 

ployer,  because  he  takes  the  gross  receipts  of  the  common  enterprise, 
and  by  reason  of  his  position  of  control  can  make  such  adjustments 
as  ought  to  be  and  practically  can  be  made,  in  the  way  of  reducing 
wages  and  increasing  the  selling  price  of  the  product,  in  order  to 
allow  for  the  statutory  liability.  There  could  be  no  more  rational 
basis  for  a  discrimination;  and  it  is  clear  that  in  this  there  is  no 
denial  of  the  "equal  protection  of  the  laws."  .  .  . 

The  act  —  assuming,  as  we  must,  that  it  be  justly  administered 
—  adds  no  new  burden  of  cost  to  industry,  although  it  does  bring 
to  light  a  burden  that  previously  existed  but  perhaps  was  unrecog- 
nized, by  requiring  that  its  costs  be  taken  into  the  reckoning.  The 
burden  is  due  to  the  hazardous  nature  of  the  industry,  and  is 
inevitable  if  the  work  of  the  world  is  to  go  forward.  .  .  . 

The  interest  of  the  State  is  obvious.  We  declared  in  the  White 
Case  (243  U.  S.  207):  "...  One  of  the  grounds  of  its  concern  with 
the  continued  life  and  earning  power  of  the  individual  is  its  interest  in 
the  prevention  of  pauperism,  with  its  concomitants  of  vice  and  crime. 
And,  in  our  opinion,  laws  regulating  the  responsibility  of  employers 
for  the  injury  or  death  of  employees  arising  out  of  the  employment 
bear  so  close  a  relation  to  the  protection  of  the  lives  and  safety  of 
those  concerned  that  they  properly  may  be  regarded  as  coming 
within  the  category  of  police  regulations."     (Citing  cases.)  .  .  . 

Having  this  interest,  the  State  of  Arizona  reasonably  might  say: 
" .  .  .  Recognizing  that  injuries  to  workmen  constitute  a  part  of  the 
unavoidable  cost  of  hazardous  industries,  w^e  will  require  that  it  be 
assumed  by  the  one  in  control  of  the  industry  as  employer,  just  as 
he  pays  other  items  of  cost ;  so  that  he  shall  not  take  a  profit  from  the 
labor  of  his  employees  while  leaving  the  injured  ones,  and  the  de- 
pendents of  those  whose  lives  are  lost,  through  accidents  due  to  the 
conditions  of  the  occupation,  to  be  a  burden  upon  the  public."  .  .  . 
The  people  of  the  State  of  Arizona  .  .  .  have  resolved  that  the 
consequences  of  a  personal  injury  to  an  employee  attributable 
to  the  inherent  dangers  of  the  occupation  shall  be  assumed,  not 
wholly  by  the  particular  employee  upon  whom  the  personal  injury 
happens  to  fall,  but,  to  the  extent  of  a  compensation  in  money  awarded 
in  a  judicial  tribunal  according  to  the  ordinary  processes  of  law, 
shall  be  assumed  by  the  employer;  leaving  the  latter  to  charge  it  up, 
so  far  as  he  can,  as  a  part  of  the  cost  of  his  product,  just  as  he  would 
charge  a  loss  by  fire,  by  theft,  by  bad  debts,  or  any  other  usual  loss 
of  the  business;  and  to  make  allowance  for  it,  so  far  as  he  can,  in  a 
reduced  scale  of  wages.  And  they  have  come  to  this  resolution,  we 
repeat,  not  in  a  matter  of  indilTerence,  or  upon  a  question  of  mere 
economics,  but  in  the  course  of  regulating  the  conduct  of  those 
hazardous  industries  in  which  human  beings  —  their  ow^n  people  — 
in  the  pursuit  of  a  livelihood  must  expose  themselves  to  death  or  to 
physical  injuries  more  or  less  disabling,  with  consequent  impoverish- 
ment, partial  or  total,  of  the  workman  or  those  dependent  upon  him. 


958  workmen's  compensation  laws         [chap,  xx 

The  statute  says  to  the  employer,  in  effect:  "You  shall  not  employ 
your  fellowTiien  in  a  hazardous  occupation  for  gain,  you  being  in  a 
position  to  reap  a  reward  in  money  through  selling  the  product  of 
their  toil,  unless  you  come  under  an  obligation  to  make  appropriate 
compensation  in  money  in  case  of  their  death  or  injury  due  to  the 
conditions  of  the  occupation."  The  rule  being  based  upon  reasonable 
grounds  affecting  the  public  interest,  being  established  in  advance 
and  applicable  to  all  alike  under  similar  circumstances,  there  is,  in 
our  opinion,  no  infringement  of  the  fundamental  rights  protected  by 
the  Fourteenth  Amendment.  .  .  . 

Judgments  affirmed. 

Mr.  Justice  Holmes  concurring. 

The  plaintiff  (the  defendant  in  error)  was  employed  in  the  de- 
fendant's mine,  was  hurt  in  the  eye  in  consequence  of  opening  a 
compressed  air  valve  and  brought  the  present  suit.  The  injury  was 
found  to  have  been  due  to  risks  inherent  to  the  business  and  so  was 
within  the  Employers'  Liability  Law  of  Arizona,  Rev.  Stats.  1913, 
Title  14,  c.  6.  By  that  law  as  construed  the  employer  is  liable  to 
damages  for  injuries  due  to  such  risks  in  specified  hazardous  em- 
plo3'ments  when  guilty  of  no  negligence.  Par.  3158.  There  was  a 
verdict  for  the  plaintiff,  judgment  was  affirmed  by  the  Supreme  Court 
of  the  State,  19  Ariz.  151,  and  the  case  comes  here  on  the  single 
question  whether,  consistently  with  the  Fourteenth  Amendment, 
such  liability  can  be  imposed.  It  is  taken  to  exclude  "speculative, 
exemplary  and  punitive  damages,"  but  to  include  all  loss  to  the 
employee  caused  by  the  accident,  not  merely  in  the  way  of  earning 
capacity,  but  of  disfigurement  and  bodily  or  mental  pain.  See 
Arizona  Copper  Co.  v.  Burciaga,  177  Pac.  Rep.  29,  33. 

There  is  some  argument  made  for  the  general  proposition  that 
innnunity  from  liability  when  not  in  fault  is  a  right  inherent  in  free 
government  and  the  obiter  dicta  of  Mr.  Justice  Miller  in  [Citizens' 
Savings  &]  Loan  Association  v.  Topeka,  20  Wall.  655,  are  referred 
to.  But  if  it  is  thought  to  be  public  policy  to  put  certain  voluntary 
conduct  at  the  peril  of  those  pursuing  it,  whether  in  the  interest  of 
safety  or  upon  economic  or  other  grounds,  I  know  of  nothing  to 
hinder.  A  man  employs  a  servant  at  the  peril  of  what  that  servant 
may  do  in  the  course  of  his  employment  and  there  is  nothing  in  the 
Constitution  to  limit  the  principle  to  that  instance.  St.  Louis  & 
San  Francisco  Ry.  Co.  v.  Mathews,  165  U.  S.  1,  22.  Chicago,  Rock 
Island  &  Pacific  Ry-  Co.  v.  Zerneckc,  183  U.  S.  582,  586.  St.  Louis, 
Iron  Mountain  &  Southern  Ry.  Co.  v.  Taylor,  210  U.  S.  281,  295. 
See  Guy  v.  Donald,  203  V.  S.  399,  406.  There  are  cases  in  which 
even  the  criminal  law  reciuires  a  man  to  know  facts  at  his  i)eril.  In- 
deed, the  criterion  which  is  thought  to  be  free  from  constitutional 
objection,  the  criterion  of  fault,  is  the  application  of  an  external 
standard,  the  conduct  of  a  prudent  man  in  the  known  circumstances, 
that  is,  in  doubtful  cases,  the  opinion  of  the  jury,  which  the  defend- 


SECT.  I]  CONSTITUTIONALITY  959 

ant  has  to  satisfy  at  his  peril  and  which  he  may  miss  after  giving  the 
matter  his  best  thought.  The  Germanic,  196  U.  S.  589,  596.  Nash 
V.  United  States,  229  U.  S.  373,  377.  Eastern  States  Retail  Lumber 
Dealers'  Association  v.  United  States,  234  U.  S.  600,  610.  Miller  v. 
Strahl,  239  U.  S.  426,  434.  Without  further  amplification  so  much 
may  be  taken  to  be  established  by  the  decisions.  New  York  Central 
R.  R.  Co.  V.  White,  243  U.  S.  188,  198,  204.  Mountain  Timber  Co. 
V.  Washington,  243  U.  S.  219,  336. 

I  do  not  perceive  how  the  validity  of  the  law  is  affected  by  the 
fact  that  the  employee  is  a  party  to  the  venture.  There  is  no  more 
certain  way  of  securing  attention  to  the  safety  of  the  men,  an  un- 
questionably constitutional  object  of  legislation,  than  by  holding 
the  employer  liable  for  accidents.  Like  the  crimes  to  which  I  have 
referred  they  probably  will  happen  a  good  deal  less  often  when  the 
employer  knows  that  he  must  answer  for  them  if  they  do.  I  pass, 
therefore,  to  the  other  objection  urged  and  most  strongh^  pressed. 
It  is  that  the  damages  are  governed  by  the  rules  governing  in  action 
of  tort  —  that  is,  as  we  have  said,  that  they  may  include  disfigure- 
ment and  bodily  or  mental  pain.  Natural  observations  are  made 
on  the  tendency  of  juries  when  such  elements  are  allowed.  But 
if  it  is  proper  to  allow  them  of  course  no  objection  can  be  founded 
on  the  supposed  foibles  of  the  tribunal  that  the  Constitution  of  the 
United  States  and  the  States  have  established.  Why  then,  is  it  not 
proper  to  allow  them?  It  is  said  that  the  pain  cannot  be  shifted  to 
another.  Neither  can  the  loss  of  a  leg.  But  one  can  be  paid  for  as 
well  as  the  other.  It  is  said  that  these  elements  do  not  constitute 
an  economic  loss,  in  the  sense  of  diminished  power  to  produce.  They 
may.  Ball  v.  William  Hunt  &  Sons,  Ltd.,  [1912]  A.  C.  496.  But 
whether  they  do  or  not  they  are  as  much  part  of  the  workman's  loss 
as  the  loss  of  a  limb.  The  legislature  may  have  reasoned  thus.  If 
a  business  is  unsuccessful  it  means  that  the  public  does  not  care 
enough  for  it  to  make  it  pay.  If  it  is  successful  the  public  pays  its 
expenses  and  something  more.  It  is  reasonable  that  the  public 
should  pay  the  whole  cost  of  producing  what  it  wants  and  a  part  of 
that  cost  is  the  pain  and  mutilation  incident  to  production.  By 
throwing  that  loss  upon  the  employer  in  the  first  instance  we  throw 
it  upon  the  public  in  the  long  run  and  that  is  just.  If  a  legislature 
should  reason  in  this  way  and  act  accordingly  it  seems  to  me  that 
it  is  within  constitutional  bounds.  Erickson  v.  Preuss,  223  N.  Y. 
365.  It  is  said  that  the  liability  is  unlimited,  but  this  is  not  true. 
It  is  limited  to  a  conscientious  valuation  of  the  loss  suffered.  Apart 
from  the  control  exercised  by  the  judge  it  is  to  be  hoped  that  juries 
would  realize  that  unreasonable  verdicts  would  tend  to  make  the 
business  impossible  and  thus  to  injure  those  whom  they  might  wish 
to  help.  But  whatever  they  may  do  we  must  accept  the  tribunal, 
as  I  have  said,  and  are  bound  to  assume  that  they  will  act  rightly 
and  confine  themselves  to  the  proper  scope  of  the  law.  .  .  . 


960  workmen's   compensation   laws  [chap,  XX 

Mr.  Justice  Brandeis  and  Mr.  Justice  Clarke  concur  ^  in  this 
statement  of  additional  reasons  that  lead  me  to  agree  with  the  opinion 
just  delivered  by  my  brother  Pitney.^  .  .  . 


Section  2.     Conclusiveness  of  Findings  of  State  Commissions 

KNIGHT'S  CASE 
Supreme  Judicial  Court  of  Massachusetts.     1918 
231  Mass.  142 
Appeal  to  the  Superior  Court  under  St.  1911,  c.  751,  Part  III, 
sec.  11,  as  amended  by  St.  1912,  c.  571,  sec.  14,  from  a  decision  of 
the  Industrial  Accident  Board  making  the  finding  which  is  quoted  in 
the  opinion  and  dismissing  the  claim  of  Ida  Knight  as  the  depend- 
ent widow  of  Edsoh  Knight. 

1  McKenna,  J.,  rendered  a  dissenting  opinion,  in  which  White,  C.  J.,  Van 
Devanter,  J.,  and  iVIcRej'nolds,  J.,  concurred.  McReynolds,  J.,  rendered  a  sep- 
arate dissenting  opinion.  —  Ed. 

^  The  first  American  Workmen's  Compensation  Law  of  general  appUcation 
was  passed  by  New  York  in  1910.  In  the  comparatively  earlv  case  of  Ives  v. 
South  Buffalo  Ry.  Co.,  201  N.  Y.  271  (1911),  the  New  York  Court  of  Appeals 
declared  the  New  York  Workmen's  Compensation  Law  of  1910  unconstitutional 
under  the  New  York  .State  Constitution.  The  decision  was  the  subject  of  wide- 
spread criticism,  and  as  the  result  of  a  change  made  in  the  New  York  State  Con- 
stitution, the  same  court  in  a  later  decision  was  able  to  sustain  the  New  York 
Act  of  1914.  See  Jensen  v.  Southern  Pacific  Co.,  215  N.  Y.  514  (1915).  During 
the  nine  j'ears  between  1911  and  1919  compensation  laws  were  enacted  in  no  less 
than  forty-two  states.  The  New  York  decision  of  Ives  v.  South  Buffalo  Ry.  Co., 
supra,  rests  upon  principles  diametrically  opposite  to  those  laid  down  in  the  sub- 
sequent decision  of  the  United  States  Supreme  Court  in  New  York  Central  R.  R. 
Co.  V.  White,  24.3  U.  S.  188  (1917).  In  fact  the  Ives  case  stands  well-nigh  alone; 
practically  all  the  courts  of  last  resort  which  have  passed  upon  the  constitutionality 
of  .similar  enactments  have  held  that  they  do  not  violate  the  constitutional  rule 
as  to  due  process  of  law.  A  series  of  decisions  of  the  United  States  Supreme 
Court  has  uniformly  upheld  different  forms  of  state  statutes;  and  "in  view  of 
the.se  decisions,  it  may  be  said  that  every  essential  feature  of  every  compensa- 
tion law  has  been  approved  l)v  this  highest  autho^it^■"  (U.  S.  Bureau  of  Lal)or 
Statistics,  Bulletin  No.  272  (1921)  p.  70). 

As  upholding  the  constitutionalit.v  of  various  forms  of  Workmen's  Compen.sa- 
tion  Acts,  see  the  following  United  States  Supreme  Court  decisions:  Jeffrey 
Manufacturing  Co.  v.  Blagg,  235  U.  S.  571;  Second  Employers'  Liability  Cases, 
223  U.  S.  1,  47-53;  New  York  Central  R.  R.  Co.  v.  White,  243  U.  S.  188;  Hawkins 
V.  Bleakly,  243  U.  S.  210;  Mountain  Timber  Co.  v.  Washington,  243  U.  S.  219; 
Middleton  v.  Texas  Power  &  Light  Co.,  249  U.  S.  152. 

See  also,  the  following  state  court  decisions  in  accord:  Hunter  v.  Colfax  Coal 
Co.,  175  la.  245;  Shade  v.  Ash  Grove  Lime,  etc.,  Co.,  93  Ivans.  257;  Greene  v. 
Caldwell,  170  Ky.  571;  Opinion  of  Justices,  209  Mass.  607;  Mailman  v.  Record 
Foundry  &  Mach.  Co.,  10()  Atl.  (Me.)  606;  Mathison  v.  Minneapolis  St.  Ry.  Co., 
126  Minn.  286;  Shea  t'.  No.  Butte  Mining  Co.,  179  Pac.  (Mont.)  499;  Sext(m  v. 
Newark  Dist.  Tel.  Co.,  84  N.  J.  L.  85;  State  v.  Hagan,  175  N.  W.  (N.  D.)  372; 
State  V.  Creamer,  85  Ohio  St.  349;  Stcrtz  v.  Industrial  Insurance  Commi.ssion, 
158  Pac.  (Wash.)  256;  Borgnis  v.  Falk  Co.,  147  Wis.  327;  Johnston  v.  Kennccott 
Coppjer  Corp.,  248  Fed.  407  (Alaska);  Anderson  v.  Hawaii  Dredging  Co.,  24 
Hawaii,  97. 


SECT.  II]  CONCLUSIVENESS   OF    FINDINGS  961 

The  case  was  heard  by  Lawton,  J.,  who  made  a  decree  that  tlie 
claim  for  compensation  be  dismissed.  Tlie  dc^pendent  widow  ap- 
pealed. 

De  Courcy,  J.  The  deceased,  Edson  Knight,  was  a  laborer  in 
the  employ  of  H.  P.  Cole,  a  coal  dealer  in  Williamstown.  While 
at  work  on  April  20,  1917,  he  was  taken  ill,  was  removed  to  his 
home  and  died  the  same  day.  An  autopsy  disclosed  aneurism,  or 
localized  dilatation,  of  the  large  blood  vessel  leading  from  the  heart 
(the  aortic  artery),  and  a  rupture  of  the  same,  which  resulted  in 
his  death.  The  dependent's  case  was  based  upon  the  contention 
that  the  aneurism  was  caused  or  aggravated  by  an  injury  which 
Knight  sustained  on  January  15,  1917,  while  he  was  delivering  coal 
at  the  house  of  a  customer  of  his  said  employer.  The  finding  of  the 
Industrial  Accident  Board  was  as  follows:  "The  evidence  shows 
and  the  board  find  and  decide  that  the  claimant  has  failed  to  sustain 
the  burden  of  proving  that  decedent's  demise  had  any  causal  con- 
nection with  a  personal  injury  which  arose  out  of  and  in  the  course 
of  his  employment ;  that  it  is  unlikely  that  the  condition  of  aneurism 
of  the  aorta  which  caused  the  emploj^ee's  death  was  due  to  or  ma- 
terially aggravated  by  the  fall  on  the  ice  of  January  15." 

It  is  forcibly  argued  by  the  claimant  that  on  the  reported  evidence 
she  has  established  a  causal  connection  between  the  accident  of 
January  15  and  the  death  of  Knight,  more  than  three  months  later. 
That  issue  is  one  of  fact,  and  is  to  be  determined  by  the  Industrial 
Accident  Board.  See  St.  1911,  c.  751,  Part  III,  sec.  16,  as  amended 
by  St.  1912,  c.  571,  sec.  15.  Their  decision  is  not  subject  to  revision 
by  this  court.  As  in  the  analogous  case  of  the  verdict  of  a  jury  or 
the  finding  by  a  judge  in  an  action  at  law,  their  finding  is  conclusive 
if  it  has  a  substantial  support  in  the  evidence.  Pigeon's  Case,  216 
Mass.  51.    Uzzio's  Case,  228  Mass.  331. 

There  was  evidence  from  which  it  could  be  found  that  the  artery 
was  in  a  somewhat  soft  condition,  and  with  spots  indicating  degen- 
eration, and  that  the  aneurism  was  due  to  disease  of  the  tissues 
rather  than  to  the  accident.  The  certificate  of  the  medical  examiner 
reported  as  a  contributory  cause  of  death  "softening  or  degeneration 
of  walls  of  artery."  A  physician  who  was  present  at  the  autopsy 
testified  that  it  was  impossible  to  state  whether  there  was  a  causal 
connection  between  the  accident  and  the  death.  It  further  appeared 
that  after  the  accident  in  January,  which  hapj^ened  on  Saturday, 
Knight  worked  on  the  following  Monday,  Tuesday  and  Wednesday, 
and  that  he  did  his  regular  work  from  February  16  until  the  day  of 
his  death,  April  20.  On  this  evidence  we  cannot  say  as  matter  of 
law  that  the  finding  of  the  board  was  unwarranted.  Accordinglj- 
the  decree  of  the  Superior  Court  dismissing  the  claim  for  compensa- 
tion must  be  affirmed,  and  it  is  0771- 

bo  ordered ^ 

'  Accord:  Messinger  v.  Lehigh  Valley  R.  R.  Co.,  104  Atl.  (Pa.)  623. 

For  an  interpretation  of  the  meaning  of  Part  III,  sec.  11,  of  the  Massachusetts 


962  workmen's  compensation  laws         [chap,  xx 


Section  3.     "/w  the  Course  of  the  Employment" 

TERLECKI  V.  STRAUSS 

Supreme  Court  of  New  Jersey.     1914 

85  N.  J.  L.  454 

Petition  under  Workmen's  Compensation  act.  Petitioner  quit 
work  at  her  machine  shortly  before  noon,  and  was  preparing  to  go 
home.  She  was  combing  particles  of  wool  out  of  her  hair,  as  was 
the  custom  of  the  girl  emplo,yes.  For  this  purpose  she  went  to  a 
passageway  where  a  piece  of  looking  glass  had  been  placed  against 
a  post,  thirty-tw^o  feet  from  her  machine.  It  was  a  common  prac- 
tice of  the  girls,  to  the  knowledge  of  the  superintendent  and  overseer, 
to  do  as  the  petitioner  did,  and  it  was  not  forbidden.  There  was  a 
"sink"  room  but  no  dressing-room  on  that  floor  of  the  factory.  While 
the  petitioner  was  combing  her  hair  it  was  caught  in  the  still  moving 
machinery  and  she  suffered  serious  injury.^ 

Swayze,  J.  We  have  no  doubt  that  the  accident  happened  in 
the  course  of  emplojanent.  It  w^ould  be  entirely  too  narrow  a  con- 
struction to  limit  the  benefit  of  the  statute  to  the  time  the  workman 
is  actually  employed  at  his  machine.  He  must  have  time  to  reach 
his  machine  and  to  get  away  from  his  employer's  premises.  In  fact, 
it  is  a  necessary  implication  of  the  contract  of  emplojanent  that  the 
workman  shall  come  to  his  work  and  shall  leave  with  reasonable 
speed  when  the  work  is  over.  The  preparation  reasonabh^  necessary 
for  beginning  work  after  the  employer's  premises  are  reached,  and 
for  leaving  when  the  work  is  over,  is  a  part  of  the  employment.  A 
workman  is  none  the  less  in  the  course  of  employment  because  he 
is  engaged  in  changing  his  street  clothes  for  his  working  clothes,  or 
in  changing  his  working  clothes  for  his  street  clothes.  In  the  pres- 
ent case,  it  was  reasonably  necessary  that  the  petitioner  should 
comb  her  hair  and  remove  the  particles  of  wool  before  leaving  the 
factory. 

The  question  whether  the  accident  arose  out  of  the  employnuMit  is 
perhaps  more  doubtful.  The  employment  was  not  indeed  the  proxi- 
mate cause  of  the  accident,  but  it  was  a  cause  in  the  sense  that  but 
for  the  employment  the  accident  would  not  have  happened.  The 
employment  was  one  of  the  necessary  antecedents  to  the  accident. 

Workmen's  Compensation  Act,  providing  that  when  copies  of  an  order  or  de- 
cision of  the  industrial  accident  board  have  been  presented  to  the  Superior  Court, 
"said  court  shall  render  a  decree  in  accordance  tluTcwith,"  see  McNicol's  Case, 
215  Mass.  497,  502.  The  Act  further  provides  that  in  regard  to  such  decrees 
"there  shall  be  no  appeal  therefrom  ujjon  questions  of  fact."  —  Ed. 

•  The  New  Jersey  Workmen's  ComiJcnsation  A(;t  awards  compensation  "when 
personal  injury  is  caused  to  an  employee  by  accident  arising  out  of  and  in  the 
course  of  his  employment."  —  Ed. 


SECT.  Ill]      ''in   the    course   OF   THE    EMPLOYMENT"  963 

A  case  has  recently  arisen,  under  the  Enghsh  statute,  which  seems 
to  involve  the  same  principle  under  different  facts,  dare  v.  Norton 
Hill  Colliery  Co.,  (1909)  2  K.  B.  539.  A  collier  was  injured  while 
leaving  his  work  and  crossing  lines  of  rail  controlled  by  his  em- 
ployers. He  had  three  ways  to  go  home,  but  the  one  he  used  was 
the  shortest  and  was  commonly  used  by  the  workmen  with  the 
knowledge  and  consent  of  the  employers.  It  was  held  by  the  Court 
of  Appeal  that  the  accident  arose  out  of  and  in  the  course  of  the  em- 
ployment. It  is  unnecessary  to  review  the  earlier  cases  in  the  English 
■courts. 

The  judgment  is  affirmed,  with  costs. ^ 


MATTER  OF  McINERNEY  v.  BUFFALO  &  SUSQUE- 
HANNA RAILROAD  CORPORATION 

Court  of  Appeals  of  New  York.     1919 
225  N.  Y.  130 

Appeal,  by  promission,  from  an  order  of  the  Appellate  Division 
of  the  Supreme  Court  in  the  third  judicial  department,  entered 
May  7,  1918,  unanimously  affirming  an  award  of  the  state  indus- 
trial commission  made  under  the  Workmen's  Compensation  Law.^ 

HiscocK,  Ch.  J.  What  we  regard  as  the  determinative  facts 
which  have  been  found  in  this  case,  aside  from  formal  ones,  are  to 
the  effect  that  the  deceased  workman  was  in  the  employ  of  defend- 
ant as  a  car  inspector  in  one  of  its  yards;  that  he  was  accustomed 
to  go  for  his  dinner  to  his  home,  which  was  not  on  the  defendant's 
premises,  on  weekdays  taking  the  highway  and  on  Sundays  walking 
on  the  railroad  right  of  way  in  order  to  avoid  exposing  himself  in 
his  working  clothes  to  the  view  of  people  on  the  highway;  that  he 
took  this  route  "without  objection"  on  the  part  of  his  employer 
-and  in  so  doing  "violated  no  enforced  rule";  that  on  Sundays  he 
received  pay  for  eleven  hours  which  included  the  one  which  he  was 
permitted  to  take  for  dinner;  that  on  the  day  in  question,  which 
was  Sunday,  as  he  was  thus  going  to  dinner  he  received  injuries 
causing  death  by  falling  from  a  trestle  which  was  "within  the  limits 
of  the  railroad  yards  in  which  yard  he  performed  certain  of  his  duties." 

The  Industrial  Commission  further  found  as  a  conclusion  that  the 
accident  to  deceased  "arose  out  of  and  in  the  course  of  his  employ- 
ment," but  since  we  have  findings  of  the  specific  circumstances  which 

1  Accord:  Rayner  v.  Sligh  Furniture  Co.,  180  Mich.  168.  See  also,  Swanson 
V.  Latham,  92  Conn.  87;  In  re  Donovan,  217  Mass.  76;  Littler  v.  Fuller  Co.,  223 
N.  Y.  369;  Citv  of  Milwaukee  v.  Althoff,  156  Wis.  68.  Compare  State  v.  District 
Court,  175  N.  W.  (Minn.)  110. 

2  The  New  York  Workmen's  Compensation  Law  (Art.  2,  sec.  10)  covers 
"accidental  personal  injury  sustained  by  the  employee  arising  out  of  and  in  the 
course  of  his  employment,  without  regard  to  fault."  —  Ed. 


964  workmen's  compensation  laws         [chap,  xx 

gave  rise  to  the  accident,  these  are  to  control  rather  than  the  general 
conclusion  drawn  from  them  by  the  commission. 

Tested  by  the  general  character  of  the  undertaking  in  which  the 
deceased  was  engaged  at  the  time  of  the  accident,  the  latter  did  not 
arise  in  the  course  of  or  spring  out  of  his  emplo^Tiient.  Such  a  trip 
of  an  employee  as  he  was  taking  is  not  under  ordinary  circumstances 
part  of  the  employment.  It  is  true  that  it  has  been  held  many  times 
that  where  an  employer  requests  or  customarily  permits  his  em- 
ployees to  eat  their  meals  upon  his  premises  or  in  some  place  provided 
for  them,  the  temporary'  interruption  to  their  work  thus  caused  will 
not  be  regarded  as  terminating  their  character  as  emplo^'ees  or  as 
excluding  them  from  the  protection  of  such  a  law  as  our  Compensa- 
tion Act.  (Highley  v.  Lancashire,  etc.,  Ry.  Co.,  9  B.  W.  C.  C.  496, 
501;  Blovelt  v.  Sawyer,  6  W.  C.  C.  16;  ]\Iorris  v.  Lambeth  Borough 
Council,  8  W.  C.  C.  1.)  This  view  is  in  accordance  with  the  rule 
which  prevailed  in  negligence  cases.  (Heldmaier  v.  Cobbs,  195  IlL 
172;  Riley  v.  Cudahy  Packing  Co.,  82  Neb.  319;  Thomas  v.  Wis. 
Cent.  Rwa3\  Co.,  108  Minn.  485.)  But  no  case  has  been  cited  or 
found  where  an  employee  going  for  such  a  purpose  to  his  home  or 
other  place  selected  by  him  a  substantial  distance  Siwa,y  from  the 
"ambit"  of  his  employment  and  from  the  employer's  premises  has 
been  regarded  as  so  engaged  in  the  latter's  business  that  an  accident 
then  happening  to  him  would  be  held  to  be  one  arising  out  of  and  in 
the  course  of  his  emploj'ment.  On  the  contrary  it  has  been  uni- 
formly held  that  it  did  not  so  arise.  (Boyd  on  Workmen's  Compens. 
sec.  481;  Ruegg  on  Employers'  Liability  &  Workmen's  Compens. 
377;  Brice  v.  Lloyd,  2  B.  W.  C.  C.  26;  Hoskins  v.  Lancaster,  3  B. 
W.  C.  C.  476,  478,  479;  Hills  v.  Blair,  182  Mich.  20.)  .  .  . 

But  while  not  seeming  to  dispute  this  general  proposition  the 
attorney-general  invokes  another  rule  for  the  purpose  of  sustaining 
the  present  award.  This  rule  is  the  one  that  emplojuient  for  the 
purposes  of  a  workmen's  compensation  act,  such  as  ours,  does  not 
commence  or  end  at  the  instant  an  employee  puts  his  hand  to  or 
takes  it  from  his  actual  work,  but  includes  a  reasonable  time  and 
space  through  which  he  is  approaching  or  leaving  his  work,  and  it 
is  argued  that  under  this  principle  decedent's  relation  of  employee 
as  he  departed  to  his  dinner  continued  down  to  the  point  of  his 
accident  and  thus  gave  to  the  latter  the  necessary  character  to  make 
it  a  basis  for  compensation.  (Guastelo  v.  Mich.  Cent.  Rway.  Co.^ 
160  N.  W.  Rep.  [Sup.  Ct.  Mich.]  484;  Hoskins  v.  Lancaster,  supra; 
Gane  v.  Norton  Hill  Colliery  Co.,  2  B.  W.  C.  C.  42,  47.) 

We  do  not  think  that  the  findings  sustain  this  argument.  As 
already  stated  they  simplj^  show  that  at  the  time  the  deceased  fell 
he  was  still  "within  the  limits  of  the  railroad  yards  in  which  yard 
he  performed  certain  of  his  duties,"  there  being  nothing  to  indicate 
how  far  he  had  proceeded  from  where  he  stopped  work.  The  fact 
that  an  employee  is  on  the  "premises"  of  his  employer  when  those 


SECT.  Ill]     "in   the   course   OF   THE   EMPLOYMENT"  965 

premises  consist  of  a  railroad  right  of  way  or  yards  does  not  have 
the  significance  which  it  naturally  would  have  in  the  case  of  an 
ordinary  manufacturing  plant.  We  know  that  such  rights  of  way 
extend  indefinitely  and  that  such  yards  are  of  no  standard  size  but 
run  from  small  areas  to  large  tracts  extending  over  many  miles. 
Therefore,  to  say  that  the  deceased  was  still  within  the  yards  where 
he  performed  some  of  his  duties  in  no  manner  indicates  that  he  was 
still  within  that  reasonable  distance  of  the  point  of  cessation  of  his 
actual  work  where  he  would  be  protected.  Nor  do  we  think  that 
this  distance  and  protection  would  be  indefinitely  and  as  matter  of 
course  extended  simply  because  the  employer  permitted  him  for 
his  own  purposes  to  travel  on  the  railroad  right  of  way  instead  of 
taking  the  usual  and  safe  course  by  the  highway. 

Even  farther  than  this,  if  we  should  assume  that  we  might  look 
to  the  evidence  in  the  attempt  to  imply  a  finding  that  would  uphold 
the  award,  the  attempt  would  in  my  opinion  fail.  This  evidence 
would  show  that  the  deceased  on  the  occasion  in  question  traveled 
over  300O  feet,  considerably  more  than  half  a  mile,  from  the  yard 
where  he  stopped  work  before  reaching  the  trestle  where  he  fell, 
whereas  it  was  a  much  shorter  distance  to  the  highway  which  he 
ordinarily  used  for  this  trip,  and  although  the  route  which  he  did 
take  before  reaching  the  trestle  crossed  two  streets  which  would  have 
led  him  home.  Under  such  circumstances  we  do  not  think  that  it 
would  have  been  permissible  for  the  Industrial  Commission  to  find 
that  the  deceased  at  the  time  of  his  accident  was  still  within  that 
reasonable  distance  which  the  law  gave  to  him  for  departure  from 
his  work.  .  .  . 

In  the  cases  which  have  been  called  to  our  attention  where  the 
claim  of  an  employee  has  been  sustained  under  the  rule  which 
we  have  discussed  the  accident  happened  in  close  proximity  to  the 
place  of  work  and  while  the  employee  was  on  the  premises  of  the 
employer  and  departing  from  or  approaching  his  work  by  a  way 
which  had  been  furnished  or  adopted  by  the  employer  as  a  usual 
and  customary  one.  (Gane  v.  Norton  Hill  Colliery  Co.,  supra;  Hos- 
kins  V.  Lancaster,  supra;  M'Kee  v.  Great  North.  Rway.  Co.,  1  B. 
W.  C.  C.  165.    See  also,  Olsen  v.  Andrews,  168  Mass.  261,  263.)  .  .  . 

For  these  reasons  we  think  the  order  of  the  Appellate  Division 
and  the  award  of  the  State  Industrial  Commission  must  be  reversed 
and  the  claim  dismissed,  with  costs  in  this  court  and  in  the  Appellate 
Division  against  the  Commission. 

Chase,  Collin,  Cuddeback,  Hogan,  McLaughlin  and  Crane, 
J  J.,  concur. 

Order  reversed,  etc. 


966 


workmen's  compensation  laws 


[CHAP.  XX 


BARBER  V.  JONES  SHOE  CO. 

Supreme  Court  of  New  Hampshire.     1919 

108  Atl.  690 

Action  for  negligence  by  one  Barber  against  the  Jones  Shoe  Co. 
At  the  close  of  plaintiff's  evidence,  defendant's  motion  for  a  nonsuit 
was  granted  subject  to  plaintiff's  exception.  .  .  . 

Plummer,  J.  The  plaintiff,  who  was  19  years  of  age,  had  been 
at  work  for  the  defendants  in  their  shoe  factory  upon  a  nailing  ma- 
chine for  about  one  week  at  the  time  of  the  accident.  Just  previous 
to  the  accident  he  had  completed  the  work  upon  which  he  was  en- 
gaged. He  attempted  to  do  some  other  work,  but  was  ordered  by 
the  foreman  not  to  do  it.  Having  nothing  to  do,  and  while  waiting 
for  work,  he  went  across  the  room  about  20  feet,  and  talked  with  a 
young  man  who  was  operating  a  machine  known  as  a  heel  breast 
shaver.  The  operative  at  this  machine  was  working  at  a  set  of  re- 
volving knives  on  the  left  end  of  it,  and  there  was  also  a  set  of  revolv- 
ing knives  on  the  right  end.  These  knives  were  unguarded,  although 
there  was  a  place  on  the  machine  for  a  guard,  and  no  instructions 
had  been  given  the  plaintiff  respecting  the  dangers  incurred  in  being 
near  it.  The  plaintiff's  evidence  tended  to  prove  that  while  he  was 
talking  with  this  operative  he  was  standing  with  his  back  to  the 
right  end  of  the  machine,  with  his  right  arm  hanging  by  his  side,  and 
his  left  arm  resting  on  a  shoe  rack;  that  he  had  been  thus  engaged 
in  conversation  some  three  minutes  when  the  sleeve  of  his  jumper 
on  his  right  arm  was  sucked  into  the  revolving  knives  by  the  air 
blower  attached  to  the  machine,  and  his  right  arm  was  drawn  into 
the  machine,  and  the  back  of  his  arm  just  above  the  elbow  was  cut; 
that  it  was  customary,  and  had  Ijeen  for  a  long  time,  for  employes 
in  that  room,  when  they  had  nothing  to  do  and  were  waiting  for  work, 
to  go  about  the  room  and  talk  with  the  operatives  at  the  machines, 
as  the  plaintiff  did;  that  he  had  never  seen  a  heel  breast  shaving 
machine  equipped  with  knives  before  entering  the  employment  of 
the  defendants,  and  that  he  had  not  observed  the  machine  upon 
which  he  was  injured  prior  to  the  accident;  that  the  knives  upon 
this  machine  were  invisible  when  the  machim^  was  in  operation, 
because  they  revolved  with  such  velocity. 

The  first  question  for  consideration  is  whether,  under  the  em- 
ployers' liability  and  workmen's  compensation  statute  (Laws  1911, 
c.  163),  the  plaintiff  was  in  the  course  of  his  employment  when  the 
accident  occurred. 

Sec.  1  of  the  act  enumerates  the  kinds  of  employments  covered 
by  the  law,  and  sec.  2  provides  that  — 

"if,  in  the  course  of  any  of  the  employments  above  flescrihod,  personal  in- 
jury by  accident  arising  out  of  and  in  the  course  of  tlie  employment  is  caused 
to  any  workman  employetl  therein,  in  whole  or  in  part,  by  failure  of  the  em- 


SECT.  Ill]     ''in    the    course    OF   THE   EMPLOYMENT"  967 

ploj'er  to  comply  with  any  statute,  or  with  any  order  made  under  authority 
of  law,  or  by  the  negligence  of  the  employer  or  any  of  his  or  its  officers,  agents 
or  employes,  or  by  reason  of  any  defect  or  insufficiency  due  to  his,  its  or  their 
negligence  in  the  condition  of  his  or  its  plant,  ways,  works,  machinery,  cars, 
engines,  equipment,  or  appliances,  then  such  employer  shall  be  liable  to 
such  workman  for  all  damages  occasioned  to  him." 

There  is  no  question  but  what  the  plaintiff  was  engaged  in  an  em- 
ployment covered  by  sec.  1  of  the  act.  But  the  defendants  contend, 
that  when  he  left  his  machine  while  waiting  for  work  and  went  across 
the  room  to  talk  with  a  fellow  workman,  he  was  not  in  the  course 
of  his  employment,  under  a  proper  construction  of  sec.  2.  .  .  . 

In  Boody  v.  K.  &  C.  Mfg.  Co.,  77  N.  H.  208,  90  Atl.  859,  L.  R.  A. 
1916A,  10,  Ann.  Cas.  1914D,  1280,  the  statute  received  a  liberal 
interpretation.  Such  a  construction  of  the  statute  would  warrant 
a  finding  upon  the  evidence  that  the  plaintiff  was  in  the  course  of 
his  employment  when  he  was  injured.  It  could  be  found  that  it  was 
customary  for  the  employes  to  go  about  and  talk  with  their  fellow 
workmen  when  waiting  for  work,  and  that  this  custom  was  known 
to  the  plaintiff,  and  had  existed  for  such  a  length  of  time  that  the 
defendants  knew  it,  or  ought  to  have  known  it;  that  it  was  the  fault 
of  the  defendants,  and  not  of  the  plaintiff,  that  he  had  no  work;  that 
while  he  was  without  work  he  simply  did  what  he  had  seen  others 
do,  and  what  was  customarily  done,  and  did  not  do  anything  that 
he  had  been  told  not  to  do;  that  he  was  not  enjoying  a  rest  for  a 
definite  period,  but  his  leisure  was  for  an  indefinite  time,  and  might 
be  terminated  at  any  minute,  and  while  it  continued  he  was  there 
in  the  room,  holding  himself  in  readiness  to  return  to  work,  and  sub- 
ject to  the  orders  of  the  defendants.  Some  latitude  must  be  allowed 
a  workman  while  engaged  in  his  emplojTnent.  It  cannot  be  said  as 
a  matter  of  law,  if  he  is  without  work  for  a  brief  space  of  time  and 
goes  away  from  his  work  place  a  few  yards  to  speak  to  a  fellow  work- 
man employed  in  the  same  room,  that  he  places  himself  beyond  the 
protection  of  the  statute.  Such  an  interpretation  of  the  law  would 
be  repugnant  to  the  humane  intent  and  purpose  of  the  act.  .  .  . 
Exception  sustained.^ 


RICHARDS  V.  INDIANAPOLIS  ABATTOIR  CO. 

Supreme  Court  of  Errors  of  Connecticut.     1917 

92  Conn.  274 

Appeal  by  the  defendants  from  a  finding  and  award  of  the  Com- 
pensation Commissioner  for  the  third  district  in  favor  of  the  plaintiff, 
taken  to  and  tried  b}^  the  Superior  Court  in  New  Haven  County, 

1  Accord:  Steel  Sales  Corp.  v.  Industrial  Com.,  293  111.  435  (injury  in  wash- 
room of  a  factory);  In  re  Sundine,  218  Mass.  1  (employee  going  out  for  lunch); 
In  re  Von  Ette,  223  Mass.  56  (compositor  stepping  out  onto  a  roof  on  a  hot  night 


968  workmen's  compensation  laws         [chap,  xx 

Warner,  J.;  the  court  confirmed  the  action  of  the  Compensation 
Commissioner  and  dismissed  the  appeal,  and  from  this  judgment 
the  defendants  appealed.    No  error. 

The  Commissioner  found  these  facts:  The  plaintiff  was  a  driver 
of  the  defendant  employer,  and  on  the  day  of  the  injury  had  been 
engaged  in  his  emplojinent  from  about  six  o'clock  in  the  morning 
up  to  about  twelve  o'clock  noon,  during  which  his  work  had  been 
hard.  Shortly  before  noon  the  plaintiff  came  in  from  his  route,  did 
some  duties  about  his  employer's  premises,  and  shortly  after  twelve 
o'clock  started  to  take  some  beef  upon  an  elevator  which  was  used 
jointly  by  his  employer  and  by  another  concern.  The  elevator  was 
at  that  moment  in  use  and  was  likely  to  be  in  use  for  a  period  of  at 
least  fifteen  minutes.  The  course  of  duty  of  the  plaintiff  called  for 
waiting  until  the  elevator  was  free.  While  waiting  for  the  elevator 
to  become  free,  he  sat  down  upon  a  nail  keg  about  seven  feet  from 
the  elevator  and  about  four  feet  from  a  boiler  used  in  connection 
with  his  employer's  premises,  and  in  front  of  the  so-called  fire-box  of 
the  boiler.  The  weather  was  cold,  and  the  plaintiff  sat  upon  the  keg 
for  the  purpose  of  getting  warm  as  well  as  for  the  purpose  of  waiting 
for  the  freeing  of  the  elevator  from  other  use.  The  sitting  upon  the 
nail  keg  while  waiting  for  the  elevator  was  a  proper  course  of  con- 
duct on  his  part.  The  duties  of  the  plaintiff  involved  carrying  meat, 
and  he  properly  wore  an  apron  which  naturally  became  greasy  from 
the  meat.  There  was  no  evidence  as  to  whether  the  door  of  the  fire- 
box was  open  or  not.  At  the  time  he  sat  down,  and  also  at  the  time 
of  the  injury,  he  was  alone  in  that  part  of  the  premises.  After  sitting 
down,  he  dozed  off  and  fell  asleep,  and  a  few  minutes  thereafter  was 
awakened  by  finding  himself  afire.  The  falling  asleep  of  the  plaintiff 
was  natural  in  the  case  of  a  man  who  had  been  engaged  in  hard 
work  for  the  whole  morning  in  the  cold  and  who  at  the  time  was 
sitting  in  a  hot  place.  The  falling  asleep  was  not  the  result  of  any 
conscious  effort  on  the  part  of  the  plaintiff  but  came  simply  from 
drowsiness  which  crept  over  him  as  the  result  of  his  previous  exer- 
tion, the  cold  to  which  he  had  been  exposed,  and  the  presence  of  the 
heat.  Upon  awakening  he  rushed  out  and  the  fire  was  extinguished 
by  the  efforts  of  fellow  employees  in  another  part  of  the  building, 
after  inflicting  severe  burns  upon  his  legs.  The  fire  in  cjuestion  re- 
sulted from  the  proximity  of  the  plaintift'  to  the  fire-box  and  l)oiler, 
and  came  either  from  the  heat  imparted  by  th(^  fin^-box  or  l)oiler, 
or  from  a  flying  bit  of  coal. 

The  defendants  claimed  that  th<^  injury  did  not  arise  out  of  and 

for  fresh  air);  Zabriskie  v.  Erie  R.  R.  Co.,  85  N.  J.  L.  157  (employee  killed  while 
crossing  railroad  tracks  on  the  way  from  the  j)lacc  of  his  employment  to  the 
toilet);  Belle  City  Malle:il)le  Iron  Co.  v.  Iiulustrinl  Commission,  174  N.  W.  (Wis.) 
899  (employee's  loss  of  life  during  an  effort  to  oxtingviish  a  fire  on  employer's 
premises  after  working  hours). 


SECT.  IV]         "arising    OUT   OF   THE    EMPLOYMENT"  969 

in  the  course  of  the  eiiiploynient.  This  claim  was  ovornilcd  by  the 
Commissioner  and  by  the  court  below. ^ 

RoRABACK,  J.  Generally  speaking,  "an  injury  to  an  employee 
may  be  said  to  arise  'in  the  course  of  his  employment,'  when  it  occurs 
within  the  period  of  his  employment,  at  a  place  where  he  reasonably 
may  be,  and  while  he  is  reasonably  fulfilling  the  duties  of  his  em- 
ployment, or  is  engaged  in  doing  something  incidental  to  it."  Larke 
V.  Hancock  Mutual  Life  Ins.  Co.,  90  Conn.  303,  97  Atl.  320;  Mann 
V.  Glastonbury  Ivnitting  Co.,  90  Conn.  116,  119,  96  Atl.  368. 

The  controlling  question  here  presented  is  whether  Richards,  the 
plaintiff,  when  injured,  was  actually  doing  the  work  he  was  employed 
to  do,  or  whether  he  was  doing  something  substantially  different. 
He  was  injured  while  on  duty,  in  his  working  hours,  when  waiting 
for  an  opportunity  to  continue  his  service  of  employment.  The 
accident  occurred  when  the  plaintiff  was  at  a  place  where  he  might 
reasonably  be.  There  was  no  turning  aside  upon  his  part,  no  at- 
tempt to  serve  ends  of  his  own. 

The  fact  that  he  fell  asleep,  under  the  circumstances  set  forth  in 
the  finding,  was  not  decisive  of  his  claim.  This  at  the  most  was 
negligence,  and  our  Compensation  Act  of  1913  expressly  provides 
that  in  an  action  to  recover  damages  for  injuries  sustained  by  an 
employee,  arising  out  of  and  in  the  course  of  his  employment,  it 
shall  not  be  a  defense  that  the  injured  employee  was  negligent. 

There  is  no  error. 

In  this  opinion  the  other  judges  concurred.^ 


Section  4.   "Arising  out  of  the  Employment" 

McNICOL'S  CASE 

Supreme  Judicial  Court  of  Massachusetts.     1913 

215  Mass.  497 

RuGG,  C.  J.  This  is  a  proceeding  under  St.  1911,  c.  751,  as  amended 
by  St.  1912,  c.  571,  known  as  the  workmen's  compensation  act,  by 
dependent  relatives  for  compensation  for  the  death  of  Stuart  McNicol. 

1.  The  first  question  is  whether  the  deceaserl  received  an  "injury 
arising  out  of  and  in  the  course  of  his  emplojanent,"  within  the  mean- 
ing of  those  words  in  Part  II,  sec.  1  of  the  act.^    In  order  that  com- 

^  The  Connecticut  Workmen's  Compensation  Act  embraces  personal  injuries 
"sustained  by  an  employee  arising  out  of  and  in  the  course  of  his  employment."— Ed. 

2  Accord:  Moore  v.  Lehigh  Valley  R.  R.  Co.,  1.54  N.  Y.  Supp.  620  (railroad 
lineman  injured  while  taking  shelter  from  a  storm  under  cars  standing  on  an 
adjacent  track);  Northwestern  Iron  Co.  v.  Industrial  Commission,  160  Wis. 
633  (workman  employed  to  unload  cars  injured  while  resting  between  periods  of 
unloading). 

Compare  Weis  Paper  Mill  Co.  i'.  Industrial  Commission,  293  111.  284. 

^  Part  II,  sec.  1  of  the  Massachusetts  Workmen's  Compensation  Act,  provides 


970  workmen's  compensation  laws         [chap.  XX 

pensation  may  be  due  the  injury^  must  both  arise  out  of  and  also  be 
received  in  the  course  of  the  employment.    Neither  alone  is  enough. 

It  is  not  easy  nor  necessary  to  the  determination  of  the  case  at 
bar  to  give  a  comprehensive  definition  of  these  words  which  shall 
accurately  include  all  cases  embraced  within  the  act  and  with  pre- 
cision exclude  those  outside  its  terms.  It  is  sufficient  to  say  that 
an  injur}^  is  received  "in  the  course  of"  the  employment  when  it 
comes  while  the  workman  is  doing  the  duty  which  he  is  employed 
to  perform.  It  "arises  out  of"  the  employment,  when  there  is  ap- 
parent to  the  rational  mind,  upon  consideration  of  all  the  circum- 
stances, a  causal  connection  between  the  conditions  under  which 
the  work  is  required  to  be  performed  and  the  resulting  injury.  Under 
this  test,  if  the  injury  can  be  seen  to  have  followed  as  a  natural 
incident  of  the  work  and  to  have  been  contemplated  by  a  reasonable 
person  familiar  with  the  whole  situation  as  a  result  of  the  exposure 
occasioned  by  the  nature  of  the  employment,  then  it  arises  "out  of" 
the  employment.  But  it  excludes  an  injury  which  cannot  fairly  be 
traced  to  the  employment  as  a  contributing  proximate  cause  and 
which  comes  from  a  hazard  to  which  the  workmen  would  have  been 
equally  exposed  apart  from  the  employment.  The  causative  danger 
must  be  peculiar  to  the  work  and  not  common  to  the  neighborhood. 
It  must  be  incidental  to  the  character  of  the  business  and  not  inde- 
pendent of  the  relation  of  master  and  servant.  It  need  not  have  been 
foreseen  or  expected,  but  after  the  event  it  must  appear  to  have  had 
its  origin  in  a  risk  connected  with  the  employment,  and  to  have 
flowed  from  that  source  as  a  rational  consequence. 

The  exact  words  to  be  interpreted  are  found  in  the  English  work- 
men's compensation  act,  and  doubtless  came  thence  into  our  act. 
Therefore  decisions  of  English  courts  before  the  adoption  of  our 
act  are  entitled  to  weight.  Ryalls  v.  Mechanics'  Mills,  150  Mass, 
190.  It  there  had  been  held  that  injuries  received  from  lightning 
on  a  high  and  unusually  exposed  scaffold,  Andrew  v.  Failsworth 
Industrial  Society,  [l()04f  2.  K.  B.  32;  from  the  bite  of  a  cat  habitu- 
ally kept  in  the  place  of  employment,  Rowland  v.  Wright,  [1909] 
1  K.  B.  963;  from  a  stone  thrown  by  a  boy  from  the  top  of  a  bridge 
at  a  locomotive  passing  underneath,  Challis  v.  London  &  South- 
western Railway,  [1905]  2  K.  B.  154;  and  from  an  attack  upon  a 
cashier  travelling  with  a  large  sum  of  money,  Nisbct  v.  Rayne  & 
Burn,  [1910]  2  K.  B.  689,  all  arose  in  the  course  and  out  of  the  em- 
ployment, while  the  contrary  had  been  held  as  to  injuries  resulting 
from  a  piece  of  iron  thrown  in  anger  by  a  boy  in  the  same  service, 
Armitage  r.  Lancashire  &:  Yorkshire  Railway,  [1902]  2  K.  B.  178; 
from  fright  at  the  incursion  of  an  insect  into  the  room,  Craske  v. 
Wigan,  [1909]  2  K.  B.  635;  and  from  a  felonious  assault  of  the  em- 
ployer, Blake  r.  Head,  106  L.  T.  Rep.  822. 

that  "if  an  employee  .  .  .  received  a  personal  injury  arising  out  of  and  in  the 
course  of  his  employment  he  shall  be  paid  compensation.  ..."  —  Ed. 


SECT.  IV]  ''arising   OUT   OF   THE    EMPLOYMENT"  971 

The  definition  fornmlated  above,  when  referred  to  the  facts  of  tliese 
cases,  reaches  results  in  accord  with  their  conclusions.  Applying  it 
to  the  facts  of  the  present  case,  it  seems  plain  that  the  injury  of  the 
deceased  arose  "out  of  and  in  the  course  of  his  employment."  The 
findings  of  the  Industrial  Accident  Board  in  substance  are  that 
Stuart  McNicol,  while  in  the  performance  of  his  duty  at  the  Hoosac 
Tunnel  Docks  as  a  checker  in  the  employ  of  a  firm  of  importers,  was 
injured  and  died  as  a  result  of  "blows  or  kicks  administered  to  him 
by  .  .  .  [Timothy]  McCarthy,"  who  was  in  "an  intoxicated  frenzy 
and  passion."  McCarthy  was  a  fellow  workman  who  "was  in  the 
habit  of  drinking  to  intoxication,  and  when  intoxicated  was  quarrel- 
some and  dangerous,  and  unsafe  to  be  permitted  to  work  with  his 
fellow  employees,  all  of  which  was  known  to  the  superintendent 
Matthews,"  who  knowingly  permitted  him  in  such  condition  to  con- 
tinue at  work  during  the  day  of  the  fatality,  —  which  occurred  in  the 
afternoon.  The  injury  came  while  the  deceased  was  doing  the  work 
for  which  he  was  hired.  It  was  due  to  the  act  of  an  obviously  in- 
toxicated fellow  workman,  whose  quarrelsome  disposition  and  ine- 
briate condition  were  well  known  to  the  foreman  of  the  employer. 
A  natural  result  of  the  employment  of  a  peaceable  workman  in  com- 
pany with  a  choleric  drunkard  might  have  been  found  to  be  an 
attack  by  the  latter  upon  his  companion.  The  case  at  bar  is  quite 
distinguishable  from  a  stabbing  by  a  drunken  stranger,  a  felonious 
attack  by  a  sober  fellow  workman,  or  even  rough  sport  or  horseplay 
by  companions  who  might  have  been  expected  to  be  at  work.  Al- 
though it  may  be  that,  upon  the  facts  here  disclosed,  a  liability  on 
the  part  of  the  employer  for  negligence  at  common  law  or  under 
the  employers'  liability  act  might  have  arisen,  this  decision  does 
not  rest  upon  that  ground,  but  upon  the  causal  connection  between 
the  injury  of  the  deceased  and  the  conditions  under  which  the  de- 
fendant required  him  to  work.  A  fall  from  a  quay  by  a  sailor  while 
returning  from  shore  leave,  Kitchenham  r.  Owners  of  S.  S.  Johannes- 
burg, [1911]  1  K.  B.  523,  s.  c.  [1911]  A.  C.  417;  a  sting  from  a  wasp, 
Amys  V.  Barton,  [1912]  1  K.  B.  40,  and  a  frost  bite,  Warner  v.  Couch- 
man,  [1912]  A.  C.  35,  all  have  been  held  to  be  injuries  not  "arising 
out  of"  the  employment.  But  we  find  nothing  in  any  of  them  in 
conflict  with  our  present  conclusion.  Nor  is  there  anything  at  va- 
riance with  it  in  Mitchinson  v.  Day  Brothers,  [1913]  1  K.  B.  603, 
where  it  was  held  that  injuries  resulting  from  an  assault  by  a 
drunken  stranger  upon  an  employee  engaged  at  his  work  on  the 
highway  did  not  arise  out  of  the  employment.  That  was  a  quite 
different  situation  from  the  one  now  before  us.  .  .   . 

It  follows  that  the  decree  must  be  reversed  and  a  new  decree  entered 
as  required  by  this  opinion. 

So  ordered} 

»  See  Bryant  v.  FisseU,  84  N.  J.  L.  72;  Zabriskie  v.  Erie  R.  B  Co..  8-  N.  J-  L. 
157. 


972  workmen's  compensation  laws        [chap,  xx 

HONORA  E.  MADDEN'S  CASE 

Supreme  Judicial  Court  of  Massachusetts.     1916 

222  Mass.  487 

RuGG,  C.  J.  Honora  E.  Madden  was  an  emploj^ee  of  a  carpet 
company,  which  was  a  subscriber  under  the  workmen's  compensa- 
tion act,  St.  1911,  c.  751.  The  Industrial  Accident  Board  found 
that,  while  engaged  in  the  performance  of  the  work  for  which  she 
was  hired,  she  "received  a  personal  injury  arising  out  of  .  .  .  her 
emplo3'ment,  .  .  .  aggravating  and  accelerating  a  weak  heart  con- 
dition to  the  point  of  total  incapacity  for  work."  This  finding, 
standing  alone,  might  be  considered  indecisive.  It  simply  is  a  cate- 
gorical repetition  of  the  words  in  the  statute  by  which  the  result  is 
reached  entitling  the  emploj'ee  to  compensation,  without  a  statement 
of  what  the  personal  injury  was  out  of  which  grows  the  right  to  money 
pa^^llents.  But,  as  the  Industrial  Accident  Board  "affirms  and 
adopts  the  findings  and  decision  of  the  committee  of  arbitration," 
resort  may  be  had  to  the  proceedings  of  that  committee  and  the 
evidence  there  reported  for  the  foundation  of  its  conclusions.  After 
reciting  the  substance  of  the  evidence,  most  of  which  was  uncon- 
troverted  except  that  from  physicians,  the  finding  of  the  arbitration 
committee  was  that  "the  work  Mrs.  Madden  was  doing  on  the  da}- 
on  which  the  injury  was  received  so  aggravated  and  accelerated  a 
weak  heart  condition  as  to  incapacitate  her  for  work,  and  that  she 
received  a  personal  injmy  arising  out  of  and  in  the  course  of  her 
emplojTnent,"  whereby  she  was  incapacitated.  The  personal  in- 
jury and  the  circumstances  under  which  it  was  received  are  set  out 
in  the  evidence. 

A  finding  was  warranted  that  she  had  "a  weak  heart  condition" 
before  her  injury  and  before  she  entered  the  service  of  the  subscriber. 
Her  work  for  it  was  to  repair  bad  spots  in  the  weaving  on  rolls  of 
carpet.  The  roll  was  placed  on  some  device  nearby,  and  she  pulled 
the  carpet  along  and  over  a  table  in  front  of  her.  Her  own  descrip- 
tion was  that  "her  work  was  more  pulling  [that  is  'dragging  the 
carpet  along  over  the  table']  than  sewing  .  .  .  the  carpet  was 
brought  to  them  in  a  roll  and  a  bar  was  put  through  this  roll  and 
two  girls  had  to  lift  it;  they  undid  the  carpet  on  that  roll,  turned 
the  back  over  and  had  to  pull  it,  then  they  had  to  turn  the  face  of 
it  over  and  it  was  taken  to  the  shears  —  they  had  to  pull  it  to  them; 
they  dragged  them  on  the  floor;  there  were  some  carpets  that  had  to 
be  put  on  the  table,  but  not  all  of  them  .  .  .  she  had  not  been  sewing 
all  morning  on  the  day  of  the  alleged  injury  —  there  is  not  as  much 
sewing  to  do  as  pulling  .  .  .  she  never  had  any  attack  before  this 
one."  Her  description  of  the  "personal  injury"  (Part  II,  sec.  1)  on 
which  the  claim  is  founded,  was  this:  "She  wont  to  work  on  the 
morning  of  July  10,  as  she  had  every  morning,  and  worked  up  to  the 


SECT.  IV]         ''arising   OUT   OF   THE    EMPLOYMENT"  973 

time  she  was  taken  with  the  pain  — that  was  about  11.40  o'clock; 
she  was  pulling  carpets  at  the  time  she  felt  something  give  —  she 
thought  it  would  pass  away  .  .  .  she  continued  to  work  until  it  was 
time  to  wash  up  —  she  heated  her  tea  .  .  .  and  sat  down  to  eat  her 
dinner  —  she  could  not  eat,  so  she  .  .  .  started  to  work  again;  then 
she  felt  something  else  give  way,"  and  she  was  taken  to  the  hospital. 
Other  witnesses  testified  that  the  employee  exclaimed  that  she  "had 
an  awful  pain  under  her  heart"  and  that  she  placed  some  ic(?  over  her 
heart.  It  might  have  been  inferred  from  this  and  other  evidence 
that  she  suffered  an  attack  of  "angina  pectoris,"  which  has  been 
defined  as  a  "peculiarly  painful  disease  .  .  .  usuallj^  associated 
with  organic  change  of  the  heart."  There  was,  also,  medical  testi- 
mony to  the  effect  that  "hard,  laborious  work  would  produce  a 
heart  lesion;  if  there  were  any  previous  heart  trouble,  it  would 
accelerate  it."  The  question  is,  whether  reasonable  men  could 
draw  an  inference  that  this  was  a  personal  injury  received  by  the 
employee  arising  out  of  her  employment.  We  are  not  concerned 
with  the  inquiry  whether  there  are  other  inferences,  or  whether 
this  is  the  most  reasonable  one. 

Rational  minded  persons  endeavoring  to  get  at  the  truth  might 
have  found  upon  this  evidence,  with  the  deductions  reasonablj' 
to  be  drawn  from  it,  that  the  employee,  being  under  some  degree 
of  disability  due  to  a  weak  heart,  suffered  by  reason  of  the  exertion 
in  pulling  the  carpet,  as  required  by  her  contract  of  service,  a  further 
acute  impairment  of  the  strength  of  the  heart,  whereby  it  was  dis- 
abled from  performing  its  normal  functions  as  it  had  done  thereto- 
fore. This  was  a  damage  to  a  physical  organ.  It  was  a  definite  and 
specific  detriment  to  the  physiological  structure  of  her  body. 

The  standard  established  in  this  respect  by  our  workmen's  com- 
pensation act  as  the  ground  for  compensation  is  simply  the  receiving 
of  "personal  injury  arising  out  of  and  in  the  course  of"  the  employ- 
ment. This  standard  is  materially  different  from  that  of  the  English 
act  and  of  the  acts  of  some  of  the  States  of  this  nation.  That  stand- 
ard is  "personal  injury  by  accident,"  both  in  the  act  of  1897  and 
1906.    See  Sts.  60  &  6l\'ict.  c.  37,  sec.  1  (1) ;  6  Edw.  VII,  c.  58,  sec.  1 

(1). 

The  difference  between  the  phraseology  of  our  act  and  the  Eng- 
lish act  in  this  respect  cannot  be  regarded  as  immaterial  or  casual. 
The  English  act  in  its  present  form  was  passed  several  years  before 
ours.  It  was  known  to  the  Legislature  which  enacted  our  statute 
and  was  followed  as  to  its  general  frame  and  in  many  important 
particulars.  Gould's  Case,  215  Mass.  480,  486.  McNicol's  Case, 
215  Mass.  497,  499.  Indeed,  "The  language  of  the  English  act 
of  1897  was  followed  whenever  possible."  See  Report  of  IMassa- 
chusetts  Commission  on  Compensation  for  Industrial  Accidents, 
1912,  page  46.  This  difference  must  be  treated  as  the  result  of  delib- 
erate design  by  the  General  Court  after  intelligent  understanding; 


974  workmen's  compensation  laws        [chap,  xx 

of  the  limitation  expressed  by  the  words  of  the  Enghsh  act.     The 
freer  and  more  comprehensive  words  in  our  act  must  be  given  their 
natural  construction  with  whatever  added  force  may  come  from  the 
intentional  contrast  in  phraseology  with  the  English  act.    The  "per- 
sonal injury  by  accident,"  which  by  the  English  act  is  made  the 
prerequisite  for  the  award  of  financial  relief,  is  narrower  in  its  scope 
than  the  simple  "personal  injury"  of  our  act.    As  was  said  in  Fen- 
ton  V.  J.  Thorley  &  Co.  Ltd.,  [1903]  A.  C.  443,  at  page  448,  "The 
words  '  by  accident '  are  .  .  .  introduced  parenthetically  as  it  were 
to  qualify  the  word  '  injurj','  confining  it  to  a  certain  class  of  in- 
juries, and  excluding  other  classes,  as,  for  instance,  injuries  by  disease 
or  injury  self  inflicted  by  design."     To  the  element  of  "personal 
injury"  the  further  condition  is  added,  that  it  must  have  been  re- 
ceived as  "an  unlooked  for  mishap  or  an  untoward  event  which  is 
not  expected  or  designed,"  and  to  this  have  been  appended  the 
^vords  "by  the  workman  himself"  in  Trim  Joint  District  School 
Board  v.  Kelly,  [1914]  A.  C.  667,  679,  whereby  injuries  "designed" 
by  persons  other  than  the  workmen  are  included  within  that  act. 
An  illustration  of  the   difference  between   "personal  injury"   and 
"personal  injury  by  accident"  put  by  Lord  Reading,  the  present 
Chief  Justice  of  England,  in  the  case  last  cited,  at  page  720,  is  ap- 
posite in  this  connection:    "For  example,   if  a  workman  became 
blind  in  consequence  of  an  explosion  at  the  factory,  that  would 
constitute  an  injury  b}'  accident;  but  if  in  consequence  of  the  nature 
of  his  employment  his  sight  was  gradually  impaired  and  eventually 
he  became  blind,  that  would  be  an  injury,  but  not  an  injur}-  by  ac- 
cident." .  .  . 

"Personal  injury"  is  materially  broader  in  its  scope  than  is  "per- 
sonal injury  by  accident."  "Personal  injury"  standing  by  itself 
comprehends  a  wide  range  of  physical  harm.  Indeed,  the  phrase 
has  been  extended  in  other  connections  to  comprise  a  large  cate- 
gory of  mischiefs  which  have  a  theoretical  rather  than  corporeal 
adjunction  to  the  human  body,  and  wliich  may  be  intangible  or 
mental  rather  than  tactile  and  physical.  It  may  comprehend  dam- 
age to  those  inherent  personal  rights  which  generally  are  recognized 
as  protected  by  the  law  and  as  sacred  as  the  security  from  bodily 
violence.  Doubtless  many  decisions  include  among  personal  in- 
juries wrongs  which  would  not  be  personal  injuries  under  the  work- 
men's compensation  act.  For  example,  the  phrase  "personal  injury" 
has  been  held  to  include  even  injuries  to  reputation  resulting  from 
libel,  Thompson  v.  Judy,  95  C.  C.  A.  51,  54,  malicious  prosecution 
and  false  imprisonment,  McChristal  v.  Clisbee,  190  Mass.  120,  in- 
vasion of  the  right  to  privacy.  Riddle  v.  MacFadden,  201  N.  Y.  215, 
as  well  as  the  alienation  of  affection  of  a  husband  or  wife,  seduction, 
false  arrest  and  kindred  tortious  acts.  That  was  pointed  out  in 
Hurle's  Case,  217  Mass.  223,  after  a  considerable  review  of  the  au- 
thorities.    It   there  was  expressly  held  that  a  disease  of  the  eyes 


SECT.  IV]        "arising   OUT   OF   THE    EMPLOYMENT"  975 

directly  induced  by  inhalation  of  poisonous  gases  in  the  course  of 
the  employment  might  be  found  to  be  a  "personal  injury  arising  out 
of"  the  employment.  To  the  same  effect  in  substance  is  Johnson's 
Case,  217  Mass.  388.  These  cases  hold  that  it  is  not  necessary  to 
''personal  injury"  that  there  be  a  physical  impact.  That  was  ad- 
judged also,  with  a  full  review  of  the  English  decisions,  in  Coyle  v. 
Johns  Watson,  Ltd.,  [1915]  A.  C.  1,  12-14.  .  .  . 

Varying  facts  may  give  rise  to  questions  of  difficulty.  In  this 
connection  it  is  to  be  noted  that  there  is  no  explicit  provision  for 
compensation  for  occupational  disease  as  such.  "Personal  injury" 
is  the  only  ground  for  compensation.  The  legislative  principle 
declared  by  the  workmen's  compensation  act,  to  the  test  of  which 
all  cases  arising  under  it  must  be  subjected,  is  that  whatever  rightly 
is  describable  as  a  "personal  injury,"  if  received  "in  the  course 
of"  and  "arising  out  of"  the  employment,  becomes  the  basis  for  a 
claim.  .  .  . 

Without  undertaking  to  define  "personal  injury"  or  to  go  be- 
yond the  requirements  of  the  facts  here  presented,  it  is  enough  to 
say  that  the  occurrence  described  by  the  dependent  when  she  said 
"she  felt  something  give"  and  "felt  something  else  give  way," 
accompanied  by  the  symptoms  of  angina  pectoris,  may  have  been 
found  to  be  a  "personal  injury." 

That  injury  also  may  have  been  found  to  have  arisen  out  of  the 
employment.  The  pulling  of  the  carpet,  although  not  requiring 
such  putting  forth  of  muscular  power  as  would  have  affected  a  healthy 
person,  yet  may  have  been  enough  to  cause  the  injury  which  the 
employee  suffered.  It  could  have  been  regarded  as  resulting  from 
the  work  as  a  contributing  proximate  cause.  McNicol's  Case,  215 
Mass.  497,  499.  Brightman's  Case,  220  Mass.  17.  Fisher's  Case, 
220  Mass.  581.  ..  . 

It  has  been  argued  with  force  on  behalf  of  the  insurer  that  since 
the  harm  to  the  employee  was  not  wholly  the  effect  of  the  work  but 
came  in  large  part  from  the  previous  weakened  condition  of  the 
employee's  heart,  hence,  either  there  can  be  no  award  of  compen- 
sation, or  it  should  be  restricted  to  that  part  of  the  injury  which 
resulted  directly  from  the  work,  and  the  part  of  the  injury  which 
flowed  from  the  previous  condition  should  be  excluded.  Even  though 
the  premise  be  sound,  the  conclusion  does  not  follow.  The  act 
makes  no  provision  for  any  such  analysis  or  apportionment.  It 
protects  the  "employee."  That  word  is  defined  in  Part  V,  sec.  2, 
as  including  "every  person  in  the  service  of  another  under  any  con- 
tract of  hire,"  with  exceptions  not  here  pertinent.  There  is  nothing 
said  about  the  protection  being  confined  to  the  healthy  employee. 
The  previous  condition  of  health  is  of  no  consequence  in  determin- 
ing the  amount  of  relief  to  be  afforded.  It  has  no  more  to  do  with 
it  than  his  lack  of  ordinary  care  or  the  employer's  freedom  from 
simple  negligence.     It  is  a  most  material  circumstance  to  be  con- 


976  workmen's  compensation  laws        [chap,  xx 

sidered  and  weighed  in  ascertaining  whether  the  injury  resulted 
from  the  work  or  from  disease.  It  is  the  injury  arising  out  of  the 
employment  and  not  out  of  disease  of  the  employee  for  which  com- 
pensation is  to  be  made.  Yet  it  is  the  hazard  of  the  employment 
acting  upon  the  particular  employee  in  his  condition  of  health  and 
not  what  that  hazard  would  be  if  acting  upon  a  health}-  employee 
or  upon  the  average  emploj-ee.  The  act  makes  no  distinction  be- 
tween wise  or  foolish,  skilled  or  inexperienced,  healthy  or  diseased 
employees.  All  who  rightly  are  describable  as  employees  come 
within  the  act. 

The  act  is  not  a  substitute  for  disability  or  old  age  pensions.  It 
cannot  be  strained  to  include  that  kind  of  relief.  Its  ultimate  pur- 
pose simply  is  to  treat  the  cost  of  personal  injuries  incidental  to  the 
employment  as  a  part  of  the  cost  of  the  business.  It  does  not  afford 
compensation  for  injuries  or  misfortunes,  which  merely  are  con- 
temporaneous or  coincident  with  the  emplo\mient,  or  collateral  to 
it.  Not  every  diseased  person  suffering  a  misfortune  while  at  work 
for  a  subscriber  is  entitled  to  compensation.  The  relief  is  so  new 
that  the  tendency  may  be  to  inquire  only  as  to  the  employment 
and  the  injury  and  to  assume  that  these  two  factors  constitute 
ground  for  compensation.  But  the  essential  connecting  link  of  direct 
causal  connection  between  the  personal  injury  and  the  employment 
must  be  established  before  the  act  becomes  operative.  The  per- 
sonal injury  must  be  the  result  of  the  emplojmient  and  flow  from  it 
as  the  inducing  proximate  cause.  The  rational  mind  must  be  able 
to  trace  the  resultant  personal  injury  to  a  proximate  cause  set  in 
motion  by  the  employment  and  not  by  some  other  agency,  or  there 
can  be  no  recovery.  In  passing  upon  this  question,  an  humanitarian 
emotion  ought  not  to  take  the  place  of  sound  judgment  in  the  weigh- 
ing of  evidence.  The  direct  connection  between  the  personal  injury 
as  a  result  and  the  employment  as  its  proximate  cause  must  be 
proved  by  facts  before  the  right  to  compensation  springs  into  being. 
A  high  degree  of  discrimination  must  be  exercised  to  determine 
whether  the  real  cause  of  an  injury  is  disease  or  the  hazard  of  the 
emploj'ment.  A  disease,  which  under  any  rational  work  is  likely  to 
progress  so  as  finally  to  disable  the  employee,  does  not  become  a 
"personal  injury"  under  the  act  merely  because  it  reaches  the  point 
of  disablement  while  work  for  a  subscriber  is  being  pursued.  It  is 
only  when  there  is  a  direct  causal  connection  between  the  exertion 
of  the  employment  and  the  injury  that  an  award  of  compensation 
can  be  made.  The  substantial  cjuestion  is  whether  the  diseased 
condition  was  the  cause,  or  whether  the  emi)lovment  was  a  proxi- 
mate contributing  cause.  In  the  former  case,  no  award  can  be  made; 
in  the  latter,  it  ought  to  be  made.  This  in  substance  is  the  test 
stated  in  McNicol's  Case,  215  Mass.  497,  499.  It  must  be  applied 
here,  as  in  other  cases.  In  this  respect  the  same  rule  governs  as 
under  the  English  act,  where  acceleration  of  a  diseased  bodily  con- 


SECT.  IV]         "arising    OUT    OF    THE    EMPLOYMENT"  977 

dition  to  the  point  where  it  constitutes  a  personal  injury  ])y  reason 
of  the  strain  or  exertion  of  the  employment,  is  si'ound  for  recovery. 
See  Clover,  Clayton  &  Co.  Ltd.  v.  Hughes,  [1910]  A.  C.  242,  243, 
and  like  cases  cited  above. 

This  point  is  governed  by  Brightman's  Case,  220  Mass.  17.  .  .  . 
When  a  pre-existing  heart  disease  of  the  employee  is  accelerated  to 
the  point  of  disablement  by  the  exertion  and  strain  of  the  employ- 
ment, not  due  to  the  character  of  the  disease  acting  alone  or  progress- 
ing as  it  would  in  any  rational  work,  there  may  be  found  to  have 
been  a  personal  injury.  ... 

The  reasons  which  have  been  set  forth  in  this  opinion  and  in  the 
cases  to  which  reference  has  been  made  seem  to  us  to  compel  the 
conclusion  that  on  the  evidence  here  disclosed  it  was  competent 
for  the  Industrial  Accident  Board  to  find  that  the  employee  had 
received  a  "personal  injury  arising  out  of  and  in  the  course  of" 
her  "employment,"  according  to  the  true  meaning  of  those  words 
in  the  workmen's  compensation  act. 

Decree  ^  affirmed} 


BREZZENSKI  v.  CRENSHAW  ENGINEERING  CO. 

Supreme  Court  of  New  York.     1919 

188  App.  Div.  511 

H.  T.  Kellogg,  J.  The  deceased  became  prostrated  with  the 
heat  while  at  work  along  the  tracks  of  an  elevated  railway,  at  about 
four-thirty  o'clock  in  the  afternoon  of  August  9,  1918,  and  died  the 
following  day.  He' had  been  engaged  for  many  hours  on  the  elevated 
structure,  moving  up  and  down  in  the  full  glare  of  the  sun,  carrying 
bolts  and  material  to  workmen,  and  flagging  trains  to  warn  them  of 
repair  work  then  in  progress.  It  was  eighty-eight  degrees  Fahrenheit 
in  the  shade  between  the  hours  of  four  and  five  p.m.  upon  that  day. 
The  day,  evidently,  marked  the  conclusion  of  an  intense  heat  wave, 
for  on  the  fifth  the  maximum  temperature  was  ninety-one,  on  the 
sixth  ninety-three,  on  the  seventh  one  hundred  and  two,  and  on 
the  eighth  ninety-four.  The  Commission  found  that  the  deceased 
came  to  his  death  from  a  heat  stroke  arising  out  of  and  in  the  course 
of  the  employment.  In  Campbell  v.  Clausen-Flanagan  Brewery 
(183  App.  Div.  499)  it  was  said  of  a  sun  stroke  case:  "The  question 
is  whether  the  deceased  by  reason  of  his  emplo>niient  was  subjected 
to  a  special  and  increased  hazard  not  common  to  the  public  in  general, 
but  because  of  the  particular  circumstances  under  which  he  was 
required  to  work."  After  it  had  been  remarked  therein  that  the 
facts  were  undisputed,  it  was  also  said:    "It  was  a  question  of  fact 

'  Made  in  the  Superior  Court  by  O'Connell,  J. 

2  Accord:  Carroll  v.  What  Cheer  Stables  Co.,  38  R.  I.  421;  Clover,  Clayton  & 
Co.  Ltd.  V.  Hughes,  [1910]  A.  C.  242. 


978  workmen's  compensation  laws        [chap,  xx 

for  the  Commission  to  determine  whether  the  deceased  was  specially 
affected  by  the  severity  of  the  heat  by  reason  of  his  employment." 
In  the  case  at  bar  the  Commission  did  not  find  that  the  deceased 
came  to  his  death  through  exposure,  by  reason  of  his  employment, 
to  heat  more  excessive  than  that  to  which  others  were  subjected,  or 
through  any  special  hazard  of  his  employment.  Therefore,  it  did 
not  make  a  finding  of  fact  which,  under  the  authorities,  was  neces- 
sary to  justify  an  award. 

The  award  should  be  reversed  and  claim  remitted  to  the  Indus- 
trial Commission  for  such  further  action  as  may  be  advised. 

All  concurred. 

Award  reversed  and  matter  remitted  to  the  State  Industrial  Com- 
mission.^ 


MORGAN  V.  OWNERS  OF  STEAMSHIP  ZENAIDA 

Court  of  Appeal.     1909 
25  T.  L.  R.  446 

This  was  an  appeal  from  an  award  of  his  Honour  Judge  Gye,  sitting 
at  the  Southampton  County  Court  as  an  arbitrator  under  the  Work- 
men's Compensation  Act,  1906.  The  applicant  was  engaged  as  an 
ordinary  seaman  on  board  the  steamship  Zenaida.  On  April  14, 
1908,  while  the  ship  was  lying  at  a  port  off  the  Mexican  coast,  he 
was  ordered  to  go  over  the  side  to  paint  the  vessel.  The  heat  was 
excessive,  and  he  was  seized  with  sunstroke.  As  the  result  of  the 
sunstroke  he  was  still  incapacitated,  and  there  was  evidence  that  his 
health  was  probably  permanently  impaired.  In  these  circmnstances 
the  learned  County  Court  Judge  was  of  opinion  that  he  was  suffer- 
ing from  an  accident  which  arose  out  of  and  in  the  course  of  his 
employment,  and  made  an  award  in  his  favour.  The  employers 
appealed. 

Mr.  Dickens,  K.  C.,  and  Mr.  E.  F.  Lever  argued  that  there  was 
no  accident  arising  out  of  the  course  of  the  employment.  The  man's 
illness  arose  from  a  purely  natural  cause  —  the  heat  of  the  sun.  It 
was  in  no  way  caused  by  the  circumstances  of  his  employment. 

Mr.  Norman  Craig,  for  the  workman,  was  not  called  on  to  argue. 

The  Court  dismissed  the  appeal. 

The  Master  of  the  Rolls  said  that  the  appeal  was  quite  hope- 
less. The  case  was  governed  by  the  decision  of  the  House  of  Lords 
in  Ismay,  Imric,  and  Co.  v.  Williamson,  [1908]  A.  C.  437,  and  also 
by  the  decision  in  Andrew  v.  Failsworth  Industrial  Society,  [1904]  2 
K.  B.  32. 

The  Lords  Justices  agreed. 

'  See  the  provisions  of  the  New  York  Workmen's  Compensation  Law  quoted 
in  note  2,  p.  9()3,  supra. 

Comi)iire  Alpert  v.  Powers,  223  N.  Y.  97. 


SECT.  V]  OCCUPATIONAL   INJURY  979 


Section  5.     Occupational  Injury 

BRINTONS,  LIMITED  v.  TURVEY 

House  of  Lords.     1905 
[1905]  A.  C.  230 

The  respondent's  husband,  while  employed  with  other  workmen 
in  sorting  wool  in  the  appellants'  factory,  was  infected  with  anthrax 
on  the  2nd  of  March,  1903,  and  died  thereof  on  the  7th.  In  an  ar- 
bitration held  at  Kidderminster,  after  hearing  medical  evidence, 
the  county  court  judge  awarded  compensation  to  the  respondent, 
saying:  "I  find  as  a  fact  that  the  anthrax,  which  was  the  immediate 
cause  of  death,  was  caused  by  the  accidental  alighting  of  a  bacillus 
from  the  infected  wool  on  a  part  of  the  deceased's  person  which 
afforded  a  harbour  in  which  it  could  multiply  and  grow  and  so  cause 
a  malignant  disease  and  consequent  death.  I  can  see  no  distinction 
in  principle  between  the  accidental  entry  of  a  spark  from  an  anvil 
or  the  accidental  squirting  of  scalding  water  or  some  poisonous 
liquid  into  the  eye.  The  only  difference  is  that  in  those  cases  the 
foreign  substance  would  be  so  large  as  to  be  visible,  in  this  case  the 
foreign  substance  is  microscopic.  I  think  it  immaterial  whether 
there  was  in  fact  any  external  pimple  or  abrasion,  because  if  there 
was,  it  was  a  fortuitous  accident  that  the  bacillus  alighted  on  that 
particular  spot.  But  I  find  in  fact  that  there  was  no  such  abrasion 
or  pimple.  My  judgment  is  based  on  the  fact  that  there  was  in  this 
case  a  fortuitous  intrusion  of  a  foreign  substance  into  the  eye  which 
by  its  presence  there  caused  death." 

This  decision  was  affirmed  by  the  Court  of  Appeal  (Collins,  M.  R., 
Mathew  and  Cozens-Hardy,  L.JJ.)  upon  the  authority  of  Fenton  v. 
Thorley,  [1903]  A.  C.  443. 

1905.  April  14.  Earl  of  Halsbury  L.  C.  My  Lords,  I  am 
not  able  to  deny  the  cogency  of  the  reasoning  of  my  noble  and  learned 
friend  Lord  Robertson  when  he  contests  that  this  House  is  con- 
cluded by  its  decision  in  Fenton  v.  Thorley,  [1903]  A.  C.  443.  I  do 
not  think  the  point  which  now  stands  for  decision  was  either  argued 
or  upon  the  facts  open  for  decision.  Nevertheless  I  am  of  opinion 
that  the  judgment  now  under  appeal  is  right.  .  .  . 

Probably  it  is  true  to  say  that  in  the  strictest  sense  and  dealing 
with  the  region  of  physical  nature  there  is  no  such  thing  as  an  acci- 
dent. The  smallest  particle  of  dust  swept  by  a  storm  is  where  it  is 
by  the  operation  of  physical  causes,  which  if  3'ou  knew  beforehand 
you  could  predict  with  absolute  certainty  that  it  would  alight  where 
it  did.  But  when  the  Act  now  under  construction  enacted  that  if 
in  any  employment  to  which  the  Act  applied  personal  injury  ''by 
accident"  arising  out  of  and  in  the  course  of  his  employment  is  caused 


980  workmen's    compensation    laws  [chap.  XX 

to  a  workman  his  employers  shall  pay  compensation,  I  think  it 
meant  that,  apart  from  negligence  of  any  sort  —  either  employers 
or  employed  —  the  industry  itself  should  be  taxed  with  an  obliga- 
tion to  indemnify  the  sufferer  for  what  was  "an  accident"  causing 
damage.  I  do  not  stop  to  discuss  the  provisions  which  disentitle 
a  sufferer,  because  they  are  not  relevant  to  the  question  now  under 
debate. 

I  so  far  agree  with  my  noble  and  learned  friend  that  I  think,  in 
popular  phraseology  from  which  we  are  to  seek  our  guidance,  it 
excludes,  and  was  intended  to  exclude,  idiopathic  disease;  but 
when  some  affection  of  our  physical  frame  is  in  any  way  induced  by 
an  accident,  we  must  be  on  our  guard  that  we  are  not  misled  by 
medical  phrases  to  alter  the  proper  application  of  the  phrase  "acci- 
dent causing  injury,"  because  the  injury  inflicted  by  accident  sets 
up  a  condition  of  things  which  medical  men  describe  as  disease. 

Suppose  in  this  case  a  tack  or  some  poisoned  substance  had  cut 
the  skin  and  set  up  tetanus.  Tetanus  is  a  disease;  but  would  anj^- 
body  contend  that  there  was  not  an  accident  causing  damage .f* 

An  injury  to  the  head  has  been  known  to  set  up  septic  pneumonia, 
and  many  years  ago  I  remember,  when  that  incident  had  in  fact 
occurred,  it  was  sought  to  excuse  the  person  who  inflicted  the  blow 
on  the  head  from  the  consequences  of  his  crime  because  his  victim 
had  died  of  pneumonia  and  not,  as  it  was  contended,  of  the  blow  on 
the  head.  It  does  not  appear  to  me  that  by  calling  the  consequences 
of  an  accidental  injury  a  disease  one  alters  the  nature  or  the  con- 
sequential results  of  the  injury  that  has  been  inflicted. 

Many  illustrations  of  what  I  am  insisting  on  might  be  given.  A 
workman  in  the  course  of  his  employment  spills  some  corrosive  acid 
on  his  hands;  the  injury  caused  thereby  sets  up  erysipelas  —  a 
definite  disease;  some  trifling  injury  by  a  needle  sets  up  tetanus. 
Are  these  not  within  the  Act  because  the  immediate  injury  is  not 
perceptible  until  it  shews  itself  in  some  morbid  change  in  the  struc- 
ture of  the  human  body,  and  which  when  shewn  we  call  a  disease? 
I  cannot  think  so. 

I  am,  therefore,  of  opinion  that  the  county  court  judge  was  quite 
right,  and  I  move  your  Lordships  accordingly. 

Lord  Macnaghten.  My  Lords,  on  the  facts  found  by  the  learned 
county  court  judge  I  am  of  opinion  that  the  decision  of  the  Court 
of  Appeal  was  right.  It  is  plain,  I  think,  that  the  mischief  which 
befell  the  workman  in  the  present  case  was  due  to  accident,  or  rather, 
I  .should  say,  to  a  chapter  of  accidents. 

It  was  an  accident  that  the  noxious  thing  that  settled  on  the  man's 
face  happened  to  be  present  in  the  materials  whicli  ho  was  engaged 
in  sorting.  It  was  an  accident  tliat  tiiis  noxious  tiling  escaped  the 
down  draught  or  suck  of  the  fan  which  the  Board  of  Trade,  as  we 
were  told,  requires  to  be  in  use  while  work  is  going  on  in  such  a  fac- 
tory as  that  where  the  man  was  employed.    It  was  an  accident  that 


SECT.  V]  OCCUPATIONAL   INJURY  981 

the  thin^  struck  the  man  on  a  deUcate  and  tendci-  spot  in  the  corner 
of  his  eye.  It  must  have  been  through  some  a(;cident  that  the  poison 
found  entrance  into  the  man's  system,  for  the  judge  finds  that  there 
was  no  abrasion  about  the  eye,  while  the  medical  evidence  seems 
to  be  that  without  some  abrasion  infection  is  hardly  possible.  The 
result  was  anthrax,  and  the  end  came  very  speedily. 

Speaking  for  myself,  I  cannot  doubt  that  the  man's  death  was 
attributable  to  personal  injury  by  accident  arising  out  of,  and  in 
the  course  of,  his  employment.  The  accidental  character  of  the  in- 
jury is  not,  I  think,  removed  or  displaced  by  the  fact  that,  like  many 
other  accidental  injuries,  it  set  up  a  well-known  disease,  which  was 
immediately  the  cause  of  death,  and  would  no  doubt  be  certified  as 
such  in  the  usual  death  certificate.  .  .  . 

I  agree  that  the  appeal  must  be  dismissed  with  costs. ^  ,  .  . 

Order  of  the  Court  of  Appeal  affirmed  and  appeal 
dismissed  with  costs. 


JOHNSON'S  CASE 

Supreme  Judicial  Court  of  Massachusetts.     1914 

217  Mass.  388 

Appeal  to  the  Superior  Court  under  St.  1911,  c.  751,  Part  III, 
sec.  11,  as  amended  by  St.  1912,  c.  571,  sec.  14,  from  a  decision  of 
the  Industrial  Accident  Board. 

The  case  was  heard  by  Crosby,  J.,  who,  upon  the  findings  of  the 
Industrial  Accident  Board,  which  are  stated  in  the  opinion,  made  a 
decree  that  the  injury  arose  out  of  and  in  the  course  of  the  employ- 
ment of  the  employee  after  July  1,  1912,  and  that  the  insurer  should 
pay  to  such  emploj^ee  a  weekly  compensation  of  $5.50  from  ]VIarch 
27,  1913,  to  continue  during  his  incapacity  for  work,  but  not  to  ex- 
ceed a  period  longer  than  five  hundred  weeks  from  the  date  of  the 
injury.    The  insurer  appealed. 

Crosby,  J.  This  case  arises  under  the  workmen's  compensation 
act,  St.  1911,  c.  751,  as  amended  by  St.  1912,  c.  571. 

The  Industrial  Accident  Board  has  found  that  the  employee, 
since  March  13,  1913,  has  been  totally  incapacitated  from  labor 
because  of  his  physical  condition,  due  to  the  results  of  lead  poison- 
ing or  plumbism,  and  that  this  is  an  injury  which  arose  out  of  and 
in  the  course  of  his  employment.  The  employee  was  seventy-two 
years  of  age,  and  was  employed  as  a  lead  grinder  continuously  for  a 
period  of  more  than  twenty  years  before  the  date  given  above,  March 
13,  1913.  The  board  further  found  that  he  had  suffered  from  lead 
poisoning  fourteen  years  before,  but  apparently  had  recovered  and 

'  Lord  Lindley  rendered  a  concurring,  and  Lord  Robertson  a  dissenting, 
opinion.  —  Ed. 


982  workmen's  compensation  laws        [chap,  xx 

had  had  no  recurrence  of  the  disease  until  he  became  ill  and  was 
totally  incapacitated  from  work  on  or  about  March  13,  1913. 

It  further  appears  from  the  report  of  the  board  that  he  had  been 
"for  twenty  years  absorbing  lead  poisoning  during  his  occupation, 
which  had  been  stored  up  in  his  system,  and  which  absorption  con- 
tinued for  eight  months  after  the  act  went  into  effect,  when,  elimina- 
tion failing,  the  poison  stored  up  manifested  itself  in  the  personal 
injury  and  the  incapacity  which  resulted  therefrom." 

The  decision  of  the  board  upon  all  questions  of  fact  being  j5nal 
if  there  is  any  evidence  to  support  them,  the  question  is  whether 
the  evidence  authorizes  the  findings.    Pigeon's  Case,  216  Mass.  51. 

The  main  inquiries  raised  by  the  appeal  are:  (1)  Has  the  em- 
ployee suffered  a  personal  injury  within  the  meaning  of  the  act? 
(2)  If  so,  what  was  the  date  of  the  injury.?  (3)  If  the  date  of  the 
injury  was  subsequent  to  July  1,  1912,  did  it  arise  out  of  and  in  the 
course  of  his  employment? 

1.  Under  the  act,  "personal  injury"  is  not  limited  to  injuries 
caused  by  external  violence,  physical  force,  or  as  the  result  of  ac- 
cident in  the  sense  in  which  that  word  is  commonly  used  and  under- 
stood, but  under  the  statute  is  to  be  given  a  much  broader  and  more 
liberal  meaning,  and  includes  any  bodily  injury.  In  this  respect  the 
English  workmen's  compensation  act  differs  from  ours,  because  that 
act  applies  only  to  "personal  injury  by  accident";  yet  since  the  pas- 
sage of  that  act  its  scope  has  been  much  enlarged  by  including  cer- 
tain industrial  diseases;  Third  Schedule,  St.  6  Edw.  VII,  c.  58;  al- 
though under  the  English  act  it  has  been  held  in  many  cases  that  the 
words  "personal  injury  by  accident"  are  not  limited  to  injuries 
caused  by  violence,  but  include  disease  incurred  by  accident. 

Aside  from  the  decisions  under  the  English  act  which  provides 
for  compensation  for  "personal  injuries  by  accident,"  it  is  clear  that 
"personal  injury"  under  our  act  includes  any  injury  or  disease  which 
arises  out  of  and  in  the  course  of  the  employment,  which  causes  in- 
capacity for  work  and  thereby  impairs  the  ability  of  the  employee 
for  earning  wages.  The  case  of  H.  P.  Hood  &  Sons  v.  Maryland 
Casualty  Co.,  206  Mass.  223,  is  decisive  of  the  case  at  bar.  In  that 
case  it  was  held  that  for  a  person  to  become  infected  with  glanders 
was  to  suffer  a  bodil}'  injury  by  accident. 

This  question  recentl}^  has  been  considered  fully  in  Hurlc's  Case, 
217  Mass.  223,  which  decided  that  an  employee  having  suffered  an 
injury  which  resulted  in  total  })lin(lness  caused  l)y  absorbing  poison 
in  the  course  of  his  employment,  which  incapacitated  him  from 
labor,  had  suffered  a  "personal  injury"  within  the  meaning  of  the 
act.    See  also  Brintons,  Ltd.  v.  Turvey,  [1905]  A.  C.  230. 

2.  In  view  of  the  finding  of  the  board  that  Johnson  had  suffered 
from  lead  poisoning  fourt<'en  years  before  and  had  bad  no  recur- 
rence of  the  disease  until  he  became  incapacitated  for  work  on  or 
about  March  13,  1913,  and  the  further  finding  that  there  had  been 


SECT.  V]  OCCUPATIONAL    INJURY  983 

"an  absorption  of  lead  poisoning  since  July  1,  1912,  and  that  the 
date  when  the  accumulated  effects  of  this  poisoning  manifested  it- 
self, and  Johnson  became  sick  and  unable  to  work,  was  the  date  of 
the  injury,"  we  are  of  opinion  that  the  board  were  warranted  in 
finding  that  the  injury  was  received  when  he  became  sick  and  unable 
to  perform  labor.  Until  then  he  had  received  no  "personal  injury," 
although  doubtless  the  previous  absorption  of  lead  into  his  system 
since  July  1,  1912,  finally  produced  the  conditions  which  terminated 
in  the  injury.  Sheeran  v.  F.  &  J.  Clayton  &  Co.,  Ltd.,  3  B.  W.  C.  C. 
583.  Yates  v.  South  Kirby,  Featherstone,  &  Hemsworth  Collieries, 
Ltd.,  3  B.  W.  C.  C.  418.  Ismay,  Imrie  &  Co.  v.  Williamson,  1  B. 
W.  C.  C.  232.  Brintons,  Ltd.  v.  Turvey,  [1905]  A.  C.  230.  Martin 
V.  Manchester  Corp.,  5  B.  W.  C.  C.  259.  Alloa  Coal  Co.,  Ltd.  v. 
Drylie,  6  B.  W.  C.  C.  398. 

3.  As  the  physical  incapacity  of  the  employee  for  work  has  been 
found  by  the  board  to  have  been  caused  by  the  gradual  absorption 
of  poison  into  his  system  subsequent  to  July  1,  1912,  resulting  in 
personal  injury  on  or  about  March  13,  1913,  there  seems  to  be  no 
reasonable  conclusion  other  than  that  such  injury  arose  out  of  and 
in  the  course  of  his  employment.  Hurle's  Case,  217  Mass.  223,  and 
cases  cited. 

Decree  affirmed.^ 


INDUSTRIAL  COMMISSION  OF  OHIO  v.  BROWN 

Supreme  Court  of  Ohio.     1915 

92  Ohio  St.  309 

Nichols,  C.  J.  The  particular  question  involved  in  the  instant 
case  is  whether  the  words  "personal  injuries  sustained  in  the  course 
of  employment"  as  used  in  the  workmen's  compensation  law,  ap- 
proved June  15,  1911  (102  O.  L.,  524),  include  lead  poisoning  con- 
tracted in  course  of  employment. 

The  defendant  in  error  was  employed  in  August,  1913,  bj'  The 
Eagle  White  Lead  Co.  of  Cincinnati,  such  company  being  at  the 
time  a  voluntary  contributor  to  the  state  insurance  fund.  While 
thus  employed  Brown  contracted  lead  poisoning  of  so  serious  a 
nature  that  he  became  sick  and  disabled  from  work.  He  made  ap- 
plication for  compensation  to  the  state  liability  board  of  awards, 
and  its  successor,  the  industrial  commission  of  Ohio,  disallowed  his 
claim.  In  January,  1914,  Brown  filed  in  the  court  of  common  pleas 
of  Hamilton  county  his  appeal  from  the  decision  of  such  industrial 

1  Accord:  In  re  Hurle,  217  Mass.  223  (blindness  induced  by  the  inhaling  of 
poisonous  gases  at  a  kiln  or  furnace.  Recovery  allowed).  Comi)are  In  re  Magge- 
let,  228  Mass.  57  (neurosis  caused  by  a  bad  posture  of  a  cigar  maker  while  at  work. 
No  recovery  allowed  because  no  necessary  connection  shown  between  the  bad 
posture  and  the  cigar  making).  Similar  to  the  last  case  is  Pimental's  Case,  127 
N.  E.  (Mass.)  424. 


984  workmen's  compensation  laws         [chap,  xx 

commission,  in  conformity  with  the  provisions  of  the  law.  Trial 
was  had,  resulting  in  a  verdict  and  judgment  in  favor  of  Brown, 
and  this  judgment  was  affirmed  by  the  court  of  appeals  of  the  same 
county. 

Reversal  of  the  judgments  is  now  sought  by  the  state. 

The  question  is  one  of  paramount  public  importance,  not  only  to 
the  industrial  classes  but  to  the  state  as  well.  The  state  has  been 
administering  this  great  trust  for  nearly  four  years,  and  during  all 
that  period  the  construction  given  the  statute  under  consideration 
by  the  administrative  body  has  been  such  as  to  preclude  recovery 
for  occupational  disease,  or  any  disease  for  that  matter,  incurred 
in  the  course  of  emplo\iuent.  For  while  the  disease  under  considera- 
tion was  clearly  occupational,  yet  if  the  claim  of  Brown  to  participate 
in  the  fund  be  sustained,  it  would  at  once  open  wide  the  doors  to  all 
claimants  who  have  suffered  from  disease  of  any  sort  which  they  may 
have  incurred  while  emploj-ed. 

The  premium  rates  assessed  and  collected  by  the  administering 
board  during  this  period  of  time  have  been  fixed  on  a  basis  of  death 
and  injuries  by  accident  solelj^,  to  the  entire  exclusion  of  injury 
through  disease.  It  is  quite  patent  that  any  other  construction  would 
necessitate  an  immediate  and  striking  horizontal  elevation  of  all 
premium  rates  and  would  in  all  probability  prove  a  serious  menace 
to  the  law  itself.  .  .  . 

This  court,  with  much  show  of  logic  and  also  authority,  could 
construe  this  phrase  as  did  the  courts  below.  It  is  no  difficult  mat- 
ter to  bring  within  the  purview  of  the  words  "personal  injuries  sus- 
tained in  the  course  of  employment"  occupational  diseases  incurred 
in  course  of  employment.  It  can  be  further  conceded  that  had  the 
legislature,  in  enacting  either  the  original  or  the  present  law,  desired 
to  make  plain  its  intention  to  exclude  occupational  disease  from 
participation  in  the  fund,  the  exclusion  could  readily  have  been  made 
by  adding  to  the  words  "personal  injuries"  the  qualifying  phrase 
"by  accident." 

As  against  all  this  the  court  feels  impelled  to  follow  both  the 
executive  and  legislative  construction  of  the  word  "injury"  as  em- 
ployed in  this  act  and  to  limit  recovery  of  compensation  to  such  as 
may  have  suffered  injury  otherwise  than  through  disease,  thereby 
giving  to  the  legislative  and  executive  construction  the  added  force 
of  judicial  construction. 

The  court  arrives  at  the  clear  legislative  construction  of  the  term  by 
a  review  of  the  history  of  the  law  in  the  seventy-ninth  and  eightieth 
general  assemblies,  in  connection  with  the  constitutional  amendment 
on  the  subject  of  workmen's  ('ompensation.   .  .  . 

The  subject  of  compensation  for  occupational  disease  occupies  a 
distinct  field  of  its  own.  It  is  so  recognized  not  only  in  our  constitu- 
tion but  by  all  humanitarians  who  have  given  the  matter  thoughtful 
attention.    It  is  a  vast  subject,  worthy  of  the  most  careful  attention 


SECT.  V]  OCCUPATIONAL    INJURY  985 

by  the  lawmaking  body,  and  it  was  evidently  the  intention  of  both 
the  seventy-ninth  and  eightieth  general  assemblies  that  Ohio  should 
eventually  enter  into  the  larger  field,  as  is  evidenced  by  the  resolution 
on  the  subject  of  occupational  diseases,  enacted  by  both  assemblies 
that  legislated  on  the  workmen's  compensation  subject. 

The  victims  of  modern  industrialism  springing  from  disease  in- 
cident thereto  are  only  less  numerous  than  those  arising  from  pure 
accident,  and  no  sound  policy  can  be  suggested  that  should  protect 
the  one  class  and  ignore  the  other,  especially  when  the  compensation 
system  becomes  firmly  established.  Until  this  is  done  the  court 
will  continue  to  construe  the  law  as  it  was  obviously  intended  by 
the  legislature  that  it  should  be  construed.  .  .  . 

The  judgment  of  the  court  of  appeals  will  be  accordingly  reversed, 
and  the  cause  will  be  remanded  to  the  court  of  common  pleas  with 
instructions  to  sustain  the  demurrer  of  the  state  to  the  petition  on 
appeal  of  the  claimant  Brown. 

Judgment  reversed} 


NAUD  V.  KING  SEWING  MACHINE  CO. 

Supreme  Court  of  New  York.     1916 

95  Misc.  676 

Wheeler,  J.  The  complaint  sets  forth  a  cause  of  action  for 
alleged  negligence  under  the  Employers'  Liability  Act  of  this  state. 
It  alleges  in  substance  that  the  defendant  negligently  failed  to  furnish 
and  provide  the  plaintiff  while  in  its  employ  "with  reasonably  safe 
implements,  appliances,  ventilators,  fans,  blowers  or  other  devices 
.  .  .  for  the  carrying  away  of  poisonous  and  dangerous  gases  and 
fumes;  in  permitting  and  allowing  poisonous  gases  and  fumes  to 
accumulate  and  remain  in  and  about  the  place  in  which  this  plain- 
tiff was  required  to  work,  .  .  .  and  through  the  carelessness  and 
negligence  of  defendant"  in  other  ways  failing  and  neglecting  to 
perform  certain  alleged  duties  for  the  proper  and  reasonable  safety 
of  the  plaintiff,  whereby  it  is  alleged  the  plaintiff  inhaled  certain 
poisonous  gases  and  fumes,  which  occasioned  permanent  injuries 
to  his  lungs  and  other  portions  of  his  body.  It  is  not  necessary  to  go 
into  further  details  as  to  the  allegations  of  the  complaint. 

In  its  answer,  the  defendant  makes  certain  denials  of  the  allega- 
tions of  the  complaint,  and  alleges  that  the  alleged  injuries  received 

*  Accord:  Miller  v.  Amer.  Steel  &  Wire  Co.,  90  Conn.  349  (lead  poisoning;  no 
recovery  allowed;  but  see  dissenting  opinion);  Adams  v.  Acme  White  Lead  «t 
Color  Works,  182  Mich.  157  (lead  poisoning;  no  recovery  allowed,  although  the 
Michigan  statute  contains  the  same  phraseology^  in  the  bodj'  of  the  Act  as  the 
Massachusetts  statute) ;  Liondale  Bleach,  Dye  &  Paint  Works  v.  Hiker,  85  N.  J.  L. 
426  (eczema  from  work  in  a  bleachery ;  no  recovery  allowed) ;  compare  Richard- 
son V.  Greenberg,  188  App.  Div.  (N.  Y.)  248. 


986  workmen's  compensation  laws       -[chap,  xx 

by  the  plaintiff  were  due  to  the  risks  incident  to  his  emplo\inent  and 
known  to  him  and  that  such  risks  were  assumed  by  the  plaintiff. 
Then  follows  the  following  allegation,  to  wit: 

"Fifth.  For  a  further  and  separate  defense  herein  the  defendant 
alleges,  upon  information  and  belief,  that  the  same  plaintiff  hereto- 
fore and  on  or  about  the  2nd  day  of  February,  1916,  in  accordance 
with  the  provisions  of  the  Workmen's  Compensation  Law  of  the 
State  of  New  York,  presented  to  defendant  the  alleged  claim  referred 
to  in  the  complaint  for  compensation  according  to  the  benefits  de- 
scribed in  said  Workmen's  Compensation  Law  for  said  alleged  injury 
claimed  to  have  been  sustained  bj^  him  in  the  course  of  his  said  em- 
plo3'ment  with  the  defendant,  and  that  thereafter  said  State  Work- 
men's Compensation  Commission,  and  on  or  about  the  29th  day  of 
March,  1916,  after  a  hearing  duly  had  thereon,  adjudged  that  the 
alleged  accident  claimed  to  have  been  sustained  by  the  said  plaintiff 
did  not  constitute  an  accident  and  adjudged  that  plaintiff's  said 
alleged  claim  be  disallowed;  and  that  by  said  judgment  this  action 
became  and  was  forever  barred  and  foreclosed." 

To  this  clause  or  portion  of  the  defendant's  answer  the  plaintiff 
demurs  on  the  ground  that  the  said  defense  is  insufficient  in  law. 
It  was  conceded  in  the  argument  of  this  demurrer  that  the  employ- 
ment in  which  the  plaintiff  was  engaged  at  the  time  he  received  the 
alleged  injuries  was  one  of  the  hazardous  employments  covered  by 
the  provisions  of  the  Workmen's  Compensation  Law. 

If  the  plaintiff's  injuries  were  in  fact  occasioned  owing  to  the 
negligence  of  the  defendant  in  the  particulars  specified  in  his  com- 
plaint, it  is  difficult  to  see  why  the  plaintiff  should  not  have  been 
given  compensation  under  the  provisions  of  the  Workmen's  Com- 
pensation Law. 

After  specifying  what  are  to  be  deemed  hazardous  employments 
sec.  10  of  the  act  provides  that : 

"Every  employer  subject  to  the  provisions  of  this  chapter  shall 
pay  or  provide  as  required  by  this  chapter  compensation  according 
to  the  schedules  of  this  article  for  the  disability  or  death  of  his  em- 
ployee resulting  from  an  accidental  personal  injurj^  sustained  by  the 
employee  arising  out  of  and  in  the  course  of  his  employment,  without 
regard  to  fault  as  a  cause  of  such  injury,"  except  in  cases  of  injuries 
resulting  from  intoxication  or  those  wilfully  and  intentionally  in- 
flicted. 

We  fail  to  see  thei-efore,  if  the  allegations  of  the  complaint  arc 
true,  that  the  plaintiff's  injuries  were  the  result  of  the  defendant's 
noghgonce,  why  tlie  plaintiff  was  not  fairly  entitled  to  comi)ensation 
for  his  injuries  under  the  provisions  of  the  Com|)ensation  Act,  as 
a  "disability  .  .  .  resulting  from  an  accidental  injury,  .  .  .  arising 
out  of  and  in  the  course  of  his  employment."  Matter  of  Jensen  v. 
Southern  Pacific  Co.,  215  N.  Y.  514;'  Matter  of  Winfield  v.  N.  Y. 


SECT.  V]  OCCUPATIONAL   INJURY  987 

C.  &  H.  R.  R.  R.  Co.,  216  id.  284;  Connors  v.  Semet-Solvay  Co., 
94  Misc.  Rep.  400. 

An  "accidental  injury"  as  used  in  this  statute  is  clearly  distinguish- 
able from  an  injury  in  the  nature  of  a  vocational  disease,  sustained 
in  the  course  of  an  employment,  where  from  the  inherent  nature  of 
the  work  disease  is  likely  to  be  contracted.  "Accidental"  has  been 
defined  as  "happening  by  chance,  or  unexpectedly  taking  place,  not 
according  to  the  usual  course  of  events :  casual;  fortuitous."  North 
America  Life  &  Accident  Ins.  Co.  v.  Burroughs,  69  Penn.  43;  8  Am. 
Rep.  212. 

In  insurance  policies  providing  for  an  indemnity,  "accidental" 
cause  is  defined  as  "an  event  happening  without  human  agency,  or, 
if  happening  through  human  agency,  an  event  which  under  the  cir- 
cumstances is  unusual,  and  not  expected  to  the  person  to  whom  it 
happens." 

Within  these  recognized  definitions  of  the  word  "accidental,"  if 
the  injuries  sustained  by  the  plaintiff  were  occasioned  in  the  manner 
alleged  in  the  complaint,  they  were  clearly  "accidental"  within  the 
meaning  of  the  Workmen's  Compensation  Law;  and  the  plaintiff 
would  have  been  entitled  to  compensation  as  provided  in  that  act. 

When  therefore  the  compensation  commission  found  and  deter- 
mined, after  a  hearing,  that  the  plaintiff's  injuries  were  not  the  result 
of  an  "accident"  it  found  by  necessary  implication,  that  such  in- 
juries were  not  due  to  the  defendant's  negligence,  or  occasioned  as 
alleged  in  the  complaint. 

The  importance  and  legal  significance  of  this  adjudication  by  the 
compensation  commission  arises  out  of  the  fact  that  by  the  provisions 
of  sec.  20  of  the  Compensation  Law  the  commission  is  required  to 
determine  the  claim  made  before  it  for  compensation,  after  notice 
to  the  interested  parties,  and  an  opportunity  to  present  evidence 
and  be  represented  by  counsel.  The  act  then  declares  that  "The 
decision  of  the  commission  shall  be  final  as  to  all  questions  of  fact,  and, 
except  as  provided  in  section  twenty-three  as  to  all  questions  of  law" 

Therefore  it  is  that  the  holding  of  the  commission  that  the  plain- 
tiff's injuries  were  not  due  to  "accident"  makes  that  question  res 
adjudicata  as  to  the  plaintiff  and  the  defendant  in  this  action,  and 
precludes  a  further  inquiry  into  the  questions  of  fact  in  this  action. 

The  adjudication  of  the  compensation  commission  was  therefore 
properly  set  up  in  the  answer  of  the  defendant,  as  bar  against  the 
plaintiff  in  an  effort  to  establish  in  this  action  that  his  injuries  were 
occasioned  by  the  negligence  of  the  defendant,  which  our  interpreta- 
tion of  the  act  would  constitute  an  "accidental  injur3\" 

If  the  compensation  commission  was  in  error  on  the  decision  of 
the  application  made  to  it,  the  plaintiff's  remedy  was  to  appeal 
from  its  decision  to  the  Appellate  Division  of  this  court,  as  provided 
in  sec.  23  of  the  Compensation  Law- 


988  workmen's  compensation  laws        [chap,  xx 

I  am  therefore  of  the  opinion  that  the  demurrer  of  the  plaintiff 
to  the  fifth  clause  of  the  defendant's  answer  should  be  overruled, 
with  costs  of  this  demurrer. 

Demurrer  overruled,  with  costs.^ 


McCAULEY  V.  IMPERIAL  WOOLEN  CO. 
Supreme  Court  of  Pennsyln  ania.     1918 

261  Pa.  St.  312 

Opinion  by  Mr.  Justice  Moschzisker,  May  6,  1918: 

The  plaintiff,  widow  of  James  McCauley,  claimed  compensation 
for  the  death  of  her  husband ;  the  referee  found  in  favor  of  the  claim- 
ant; the  Workmen's  Compensation  Board  reversed  this  finding; 
the  case  was  removed  to  the  Common  Pleas  of  Philadelphia  County, 
which  reversed  the  board  and  affirmed  the  referee;  the  defendant 
employer  entered  the  present  appeal.  .  .  . 

James  ^NlcCauley  was  a  "wool  sorter"  in  the  employ  of  defendant; 
the  latter  admitted  he  died  "of  external,  and  not  internal,  anthrax." 
Concededly,  it  is  a  matter  of  general  knowledge  that  anthrax  is 
primarily  a  disease  of  animals,  such  as  sheep,  which  may  be  trans- 
mitted to  men  when  handling  infected  animal  materials,  like  wool; 
it  is  caused  by  the  entrance  into  the  human  body  of  anthrax  bacilli, 
and  their  rapid  multiplication  and  development.  The  findings  of 
the  referee  show  a  practical  accord  among  the  doctors,  produced  as 
experts,  that,  in  the  majority  of  cases,  the  inoculation  which  causes 
external  anthrax  occurs  through  a  scratch  or  an  abrasion  of  the 
skin;  while  internal  anthrax  is  usually  caused  by  inhaling  the  germ, 
or  taking  it  in  with  food. 

The  findings  further  show  that,  when  James  McCauley  went  to 
his  work  on  the  morning  of  April  4,  1916,  he  was  perfectly  well  and 
had  no  abrasion  or  mark  upon  his  neck,  but  when  he  left  defendant's 
plant,  in  the  afternoon  of  that  day,  there  was  a  "little  scratch,"  or 
abrasion,  "about  the  size  of  a  dime,"  just  above  the  "Adam's  ap- 
ple," which  caused  a  swelling;  and  that  this  was  the  beginning  of 
external  anthrax,  from  which  he  died  within  three  days. 

The  findings  likewise  show  professional  medical  experts  testified 
that,  in  their  opinion,  "if  deceased  was  a  wool  sorter  [as  he  was] 
when  he  went  to  work  on  April  4,  1916,  with  no  marks  on  his  neck, 

'  ThLs  decision  of  the  Supreme  Court  was  reversed  in  the  Appellate  Division, 
178  App.  Div.  31,  on  the  ground  that  "the  answer  setting  up  the  determination 
of  the  Commission  is  insuffi(Uont  in  law  upon  tlic  face  thereof.  It  appears  by  the 
allegations  of  the  answer  that  the  Commission  (ictcrmincd  that  the  claim  was  not 
founded  upon  an  accident  and  was  disallowed.  Such  determination  is  not  an 
adjudication  that  the  claim  is  covered  by  the  Workmen's  (Compensation  Law, 
but  quite  the  reverse."  The  decisicm  of  the  Appellate  Division  was  affirmed  by 
the  New  York  Court  of  Ap[)eals  (Naud  v.  King  Sewing  Macliine  Co.,  223  N.  Y. 
507). 


SECT.  V]  OCCUPATIONAL    INJURY  989 

and  sustained  an  abrasion  about  the  size  of  a  dime  upon  his  neck, 
and  the  neck  innnediately  began  to  swell,  and  external  anthrax 
developed,  this  condition  probably  was  brought  about  by  the  an- 
thrax germ  entering  through  the  abrasion."  .  .  . 

Under  the  circumstances  of  this  case,  deceased  apparently  not 
having  been  where  he  was  liable  to  become  inoculated  with  ex- 
ternal anthrax,  except  at  his  work,  and  he,  as  he  left  defendant's 
mill,  on  the  day  in  question,  having  shown  symptoms  of  that  disease 
by  the  mark  upon  and  swelling  of  his  neck,  the  inference  may  reason- 
ably be  drawn,  in  view  of  the  nature  of  the  work  on  which  he  was 
engaged,  that  the  inoculation  occurred  during  the  course  of  his  em- 
ployment; or,  as  said  by  one  of  the  doctors,  in  all  probability  "the 
disease  was  caused  by  the  anthrax  germ  entering  through  the  skin 
by  reason  of  a  '  sticker  '  from  the  wool  which  deceased  handled  dur- 
ing the  day."  .  .  .  The  referee  was  justified  in  concluding  that 
McCauley  died  as  the  result  of  an  injury  by  accident  while  acting 
in  the  course  of  his  employment,  and,  hence,  that  claimant  was  en- 
titled to  compensation. 

Sec.  1,  of  the  Act  of  [June  2,  1915,  P.  L.  736],  provides  that  the 
statute  shall  apply  to  "all  accidents"  occurring  within  this  Common- 
wealth; this  being  limited  by  sec.  301  (P.  L.  738)  to  cases  where  the 
employer  and  employee  shall  by  agreement,  "either  express  or  im- 
plied," accept  the  provisions  of  the  act.  The  section  in  question 
provides  that,  in  such  instances,  "compensation  for  personal  injury 
to,  or  for  the  death  of,  such  employee,  by  an  accident,  in  the  course 
of  his  employment,  shall  be  made."  It  then  provides  that  "the 
terms  '  injury  '  and  '  personal  injury  '  .  .  .  shall  be  construed  to 
mean  only  violence  to  the  physical  structure  of  the  body,  and  such 
disease  or  infection  as  naturally  results  therefrom,"  and,  wherever 
death  is  mentioned,  "it  shall  mean  only  death  resulting  from  such 
violence  and  its  resultant  effects";  further,  that  "the  term  'injury  by 
an  accident  in  the  course  of  his  employment '  .  .  .  shall  not  include 
an  injury  caused  by  an  act  of  a  third  person  intended  to  injure  the 
employee  because  of  reasons  personal  to  him  and  not  directed  against 
him  as  an  employee  or  because  of  his  employment,  but  shall  include 
all  other  injuries  sustained  while  the  employee  is  actually  engaged 
in  the  furtherance  of  the  business  or  affairs  of  the  employer."  It  is 
plain  from  these  provisions  that  the  act  before  us  contemplates 
injuries  by  accident  only,  and,  therefore,  does  not  cover  what  are 
termed  "occupational  diseases." 

It  remains  but  to  show  that,  in  this  case,  the  entry  of  the  anthrax 
germ  into  the  body  of  the  deceased,  and  the  disease  or  infection  which 
naturally  resulted  therefrom,  can  be  held  properly  to  constitute  an 
accident  within  the  meaning  of  the  act.  In  this  connection,  it  is 
to  be  noted  that  there  is  nothing  in  the  language  quoted  from  sec. 
301  which  requires  an  injury  to  be  caused  through  force  externally 
applied,  or,  much  less,  by  some  tangible  substance  of  material  size. 


990  workmen's   compensation    laws  [chap.  XX 

The  words  used  are  ''violence  to  the  physical  structure  of  the  body," 
not  injury  to  the  phj'sical  structure  of  the  body  bj^  external  violence. 
The  violence  in  question  may  originate  from  lifting  heavy  weights, 
or  from  other  provable  cause  (for  instance,  intense  heat  operating 
directly  on  the  part  of  the  body  internally  affected:  see  Lane  v. 
Horn  &  Hardart  Co.,  261  Pa.  329),  which  effect  a  sudden  change  in 
the  physical  structure  or  tissues  of  the  body,  and  still  be  within  the 
compensation  act.  In  short,  if  the  incident  which  gives  rise  to  the 
injurious  results  complained  of  can  be  classed  properly  as  a  "mis- 
hap,"' or  ''fortuitous"  happening  —  an  "untoward  event,  which 
is  not  expected  or  designed"  —  it  is  an  accident  within  the  meaning 
of  the  workmen's  compensation  law:  see  House  of  Lords  case  of 
Fenton  r.  Thorley  &  Co.,  19  T.  L.  R.  684,  685;  Boardman  v.  Scott  & 
Whitworth  [1902  ]  1  K.  B.  43,  46.  When,  however,  death  results 
from  germ  infection,  to  bring  a  case  of  this  character  within  the  Act 
of  1915,  supra,  the  disease  in  question  must  be  a  sudden  develop- 
ment from  some  such  abrupt  violence  to  the  physical  structure  of 
the  body  as  already  indicated,  and  not  the  mere  result  of  gradual 
development  from  long  continued  exposure  to  natural  dangers  in- 
cident to  the  emplo\iiient  of  the  deceased  person,  as  in  cases  of  oc- 
cupational diseases,  the  risks  of  which  are  voluntarily  assumed. 

Here,  the  anthrax  germ,  a  distinguishable  entity,  came  into  actual 
contact  with  the  deceased,  thus  gaining  an  entrance  into  his  body, 
and  his  neck  began  to  swell  and  discolor;  therefore  the  complaint 
from  which  McCauley  died  can  be  traced  to  a  certain  time  when 
there  was  a  sudden  or  violent  change  in  the  condition  of  the  physical 
structure  of  his  body,  just  as  though  a  serpent,  concealed  in  the 
material  upon  which  he  was  working,  had  unexpectedly  and  sud- 
denly bitten  him:  see  Hiers  v.  Hull  &  Co.,  178  N.  Y.  (App.  Div.) 
350, "^352.  .  .  . 

The  assignments  of  error  are  overruled,  and  the  judgment  of  the 
court  below  is  affirmed,  with  a  procedendo.^ 

1  Accord:  Eldridge  v.  Endicott,  Johnson  &  Co.,  189  App.  Div.  (N.  Y.)  53; 
Hiers  v.  John  A.  Hull  &  Co.,  178  App.  Div.  (N.  Y.)  350. 


I 


APPENDIX 


APPENDIX 

MINIMUM  OF  SUBSISTENCE  AND  MINIMUM 
COMFORT  BUDGET^ 

From  Report    Made  by  the    Bureau    of  Applied  Economics, 
Washington,  D.  C,  in  November,  1919   for   the   Inter- 
church  World  Movement  Steel  Strike  Commission  ^ 

Various  students  of  the  subject  have  endeavored  to  estabhsh 
the  amount  of  income  necessary  to  support  a  family  in  health  and 
decency.  In  doing  so  several  budget  levels  of  living  have  been 
analyzed.     The  two  most  clearly  distinguished  are: 

1.  The  Minimum  of  Submstence  Level.  This  level  is  based  essen- 
tially on  animal  well  being  with  little  or  no  attention  to  the  comforts 
or  social  demands  of  human  beings. 

2.  The  Minimum  of  Comfort  Level.  This  represents  a  level  some- 
what above  that  of  mere  animal  subsistence  and  provides  in  some 
measure  for  comfortable  clothing,  insurance,  a  modest  amount  of 
recreation,  etc.  This  level  provides  for  health  and  decencj^  but  for 
very  few  comforts,  and  is  probably  much  below  the  idea  had  in 
mind  in  the  frequent  but  indefinite  expression  "The  American 
Standard  of  Living." 

1  For  a  compilation  and  comparison  of  various  budgets  and  budgetary  studies, 
see  Standards  of  Living,  Bulletin  No.  7,  Bureau  of  Applied  Economics,  Washing- 
ton, D.  C.  (Revised  ed.,  1920.)  References  will  be  found  therein  to  leading 
budgetary  studies. 

For  an  excellent  study  on  methods  of  budget-making,  see  William  F.  Ogburn, 
Measurement  of  the  Cost  of  Living  and  Wages,  Annals  of  Am.  Acad,  of  Pol. 
&  Soc.  Science,  Jan.,  1919. 

2  Published  in  the  Commission's  Report  on  the  Steel  Strike  of  1919  (issued 
by  the  Interchurch  World  Movement)  (New  York,  1920),  pp.  255-263. 


99S 


994  APPENDIX 

All  of  the  studies  have  taken  as  a  basis  a  family  of  five  —  husband, 
wife  and  three  children.  This  is  done  (1)  because  the  average  Ameri- 
can family  is  of  this  size  and  (2)  because  it  is  necessary  that  marriage 
should  be  practically  universal  and  result  in  a  minimum  of  three 
children  if  the  race  is  to  perpetuate  itself. 

The  results  of  the  various  studies  are  closely  similar  and  indicate 
that  the  annual  cost  of  maintaining  a  family  of  five  at  a  minimum  of 
subsistence  level  at  prices  prevailing  in  the  latter  part  of  1919  was 
approximately  S157o.  This  would  be  equivalent  in  purchasing  power 
to  approximately  $885  in  1914. 

The  cost  of  maintaining  the  minimum  of  comfort  level  has  not  been 
so  thoroughly  studied.  Professor  Ogburn's  estimate  as  of  June, 
1918,  was  S1760.  With  an  increase  of  15  per  cent  in  living  costs 
since  that  time  the  cost  of  this  budget  would  now  [November,  1919] 
be  approximately  S2000.  This  sum  would  be  equivalent  in  pur- 
chasing power  to  approximately  $1125  in  1914.  Professor  Ogburn's 
conclusions  may  be  taken  as  a  conservative  minimum,  as  it  is  much 
below  the  estimate  recently  put  forth  by  the  U.  S.  Bureau  of  Labor 
Statistics  as  to  the  cost  of  maintaining  a  government  employee's 
family  in  Washington  at  a  level  of  health  and  decency.  This  budget, 
at  August,  1919,  prices,  cost  $2262. 

All  of  the  studies  referred  to  dealt  with  larger  Eastern  cities,  chiefly 
New  York.  The  costs  would,  therefore,  not  be  strictly  applicable 
to  all  cities  and  towns  of  the  country.  The  differences,  however, 
except  in  a  few  exceptional  cases,  would  not  be  very  great. 

A  more  detailed  analysis  of  these  studies  is  made  in  the  following 
paragraphs: 

1.     THE  COST  OF  A  MINIMUM  OF  SUBSISTENCE  BUDGET 

Professor  W.  F.  Ogburn,  of  Columbia  University,  and  one  of  the 
best  known  authorities  on  cost  of  living,  in  a  recently  published 
article  made  a  very  careful  analysis  of  all  preceding  studies  of  mini- 
mum of  subsistence  levels  and  also  submits  a  carefully  prepared 
budget  of  his  own.^  Professor  Ogburn's  calculations  are  all  based  on 
prices  prevailing  in  June,  1918.  Prices  between  that  time  and  the 
Autumn  of  1919  have  advanced  about  15  per  cent,  and  these  changes, 
of  course,  would  have  to  be  taken  into  consideration  in  arriving  at 
the  cost  of  the  budgets  at  the  present  time.  In  order,  however,  to 
make  the  reasoning  entirely  clear  the  details  of  the  various  studies 
are  first  summarized  from  Professor  Ogburn's  article. 

'  Published  in  "Standards  of  Living,"  Bureau  of  Applied  Economics,  Wash- 
ington, 1919. 


APPENDIX  995 

(a)   Professor  Ogburn's  Budget 

Food $615 

Clothing: 

Man   76 

Woman    55 

Child,  11  to  14  years    40 

Child,  7  to  10  years 33 

Cliild,  4  to  6  years 30 

Rent 180 

Fuel  and  light 62 

Insurance 40 

Organizations   12 

Religion  7 

Street-car  fare 40 

Paper,  books,  etc 9 

Amusements,  drinks,  and  tobacco 50 

Sickness 60 

Dentist,  oculist,  glasses,  etc 3 

Furnishings 35 

Laundry 4 

Cleaning  supplies  15 

Miscellaneous  20 

Total    $1,386 

This  budget  is  for  a  large  eastern  city  and  is  the  result  of  studies 
of  600  actual  budgets  of  shipyard  workers  in  the  New  York  ship- 
building district. 

(b)  Professor  Chapin's  Budget  Brought  Up  to  Date 

Another  way  of  estimating  a  minimum  budget  for  the  American 
subsistence  level  in  1918  is  to  take  minimum  budgets  of  past  years 
that  have  been  accepted  as  standard  and  apply  the  increases  from 
the  date  of  the  budget  to  the  present  time  in  the  prices  of  the  various 
items  of  the  budget,  thus  bringing  them  up  to  date.  This  method 
assumes  no  change  in  minimum  standards.  It  is  of  course  subject  to 
possible  inaccuracies  in  measuring  the  rising  cost  of  living  between 
specific  dates  for  specific  places.  This  inaccuracy  is  thought  to  be 
slight,  however. 

For  instance,  one  of  the  most  famous  and  perhaps  most  generally 
accepted  budget  estimates  is  that  of  Professor  Chapin,  who  made  a 
study  lasting  several  years  of  New  York  families,  publishing  his 
result  in  1907.^  He  said,  "An  income  under  S800  is  not  enough  to 
permit  the  maintenance  of  a  normal  standard.    An  income  of  $900 

^  See  Robert  C.  Chapin,  The  Standard  of  Living  among  Workingmen's  Fam- 
ilies in  New  York  Citv  (Charities  Publication  Committee,  New  York  City) .  — 
Ed. 


996 


APPENDIX 


or  over  probably  permits  the  maintenance  of  a  normal  standard  at 
least  as  far  as  the  physical  man  is  concerned."'  If  we  take  the  in- 
crease in  the  cost  of  living  from  1907  to  June,  1918,  to  be  55  per  cent, 
then  Chapin's  $900  becomes  $1395.  If  we  take  the  increase  to  be 
60  per  cent  then  Chapin's  $900  becomes  $1440.  Probably  the  best 
estimates  of  increasing  cost  of  living  place  the  increase  from  January 
1,  1915,  to  June  1,  1918,  as  55  per  cent.^ 

1  Professor  Chapin  says:  "The  number  of  schedules  received  from  Greater 
New  York  was  642.  ...  Of  these,  251  were  rejected,  so  that  there  remained, 
accordingly  reports  from  391  families,  each  consisting  of  4,  5  or  6  persons.  The 
number  of  persons  in  the  standard  family  being  assumed  as  five,  families  con- 
taining one  more  and  one  less  than  this  number  were  included  as  being  fairly 
comparable  with  families  of  five  persons  in  mass  grouping  where  excess  and 
deficiency  would  tend  to  ofTset  one  another.  .  .  . 

"It  seems  safe  to  conclude  from  all  the  data  that  we  have  been  considering  that 
an  income  under  1800  is  not  enough  to  permit  the  maintenance  of  a  normal  stand- 
ard. A  survey  of  the  detail  of  expenditure  for  each  item  in  the  budget  shows  some 
manifest  deficiency  for  almost  every  family  in  the  .$600  and  $700  groups." 

Relation  of  Income  to  Under-feeding,  Etc. 

families  underfed,  underclothed  and  overcrow'ded.    number  and 
percentages  —  by  income 


Income 

$400 

to 
$599 

$600 

to 
$799 

$800 

to 
$899 

$900 

to 
$1099 

$1100 
and 
over 

Number  of  families 

25 

19 
76 

22 

88 

17 

68 

17 

68 

13 

52 

13 
62 

151 

48 
32 

86 
57 

87 
58 

24 
16 

29 
19 

56 
37 

73 

16 
22 

23 
32 

39 
53 

7 
10 

11 
15 

18 
25 

94 

8 
9 

17 

18 

34 
36 

2 
2 

5 
5 

7 
7 

48 

Underfed : 

Number 

Per  cent  

Underclothed : 

Number    

3 

Per  cent 

6 

Overcrowded: 

Number 

10 

Per  cent 

21 

I'ndcrfed  and  underclothed: 

Number 

Per  cent 

Underfed  and  overcrowded : 

Number 

.  . 

Per  cent 

Underclothed  and  ovei crowded: 
Number 

Per  cent 

I'l'ablc  quoted  from  IVofessor  Chapin.  —  Ed.| 


APPENDIX  997 

(c)  Minimum  Budget  of  New  York  Factory  Commission 
Brought  up  to  Date  ^ 

In  1915  the  New  York  State  Factory  Investigation  Conunission 
set  a  minimum  budget  for  1914  in  New  York  City  at  the  figure  S876. 
Applying  increases  in  items  of  the  budget  by  classes  from  January 
1,  1915,  to  June  1,  1918,  we  get,  as  seen  from  the  following  table,  a 
budget  of  $1356. 

Budget  Increase  in  Cost  New  York  Factory 

New  York  Factory  of  Living  to  Budget  Brought 

Commission  1914  June  1,  1918.  Up  to  Date 

Per  cent 

Food $325  65  S536 

Rent 200  29  258 

Fuel  and  light 20  44  28 

Clothing 140  76  246 

Sundries 191  51  288 


$876  $1,356 

Minimum  Budget  of  the  New  York  Factory  Investigating 
Commission,  1915 

Estimate  of  cost  of  living  of  normal  family  of  five  in  New  York  City 

Food   $325.00 

Rent    200.00 

Fuel  and  light   20.00 

Clothing  140.00 

Car  fare    31.20 

Insurance: 

Man    20.00 

Family    15.60 

Health 22.00 

Furnishings    7.00 

Education,  newspaper    5.63 

Recreation  and  amusement 50.00 

Miscellaneous    40.00 

Total $876.43 

'  For  detailed  tables  showing  carefully  itemized  costs  of  food,  clothing,  etc.,  see 
Frank  H.  Streightoff,  Appendix  VII  of  the  Fourth  Report  of  Factory  Investi- 
gating Commission,  1915,  Albany,  N.  Y.  (1915)  pp.  1625-1656.  Reprinted  in 
Standards  of  Living  (published  by  the  Bureau  of  Applied  Economics,  Washing- 
ton, D.  C,  1920),  pp.  126-141.  —  Ed. 


998 


APPENDIX 


(d)  Minimum  Budget  of  New  York  Board  of  Estimate 
Brought  Up  to  Date 

In  February,  1915,  the  Bureau  of  Personal  Service  of  the  Board 
of  Estimate  and  Apportionment  of  New  York  Citj^  made  a  minimum 
budget  estimate  for  an  unskilled  laborer's  famity  in  New  York  City 
of  S845.  Applying  increases  in  items  of  the  budget  by  classes  from 
January  1,  1915,  to  June  1,  1918,  we  get,  as  seen  from  the  following 
table,  a  budget  of  $1317. 

Budget                         Increase  in  New  York  Board 

New  York  Board           Cost  of  Living  to  of  Estimate  Budget 

of  Estimate,  1915             June  1,  1918.  Brought  Up  to  Date 
Per  cent 

Food $384  65  $634 

Rent 168  29  217 

Fuel  and  light 43  44  62 

Clothing 104  76  183 

Sundries 146  51  221 

•                                          — — ^ 

Total    $845  $1,317 


It  is  possible  to  criticize  this  budget  as  being  too  low  in  allow- 
ances for  health,  furniture,  and  education,  and  very  low  indeed  in 
other  sundries. 

Budget  of  New  York  Board  of  Estimate  for  1915 

Housing    $168.00 

Car  fare    30.30 

Food   383.81 

Clothing  104.20 

Fuel  and  light   42.75 

Health 20.00 

Insurance  22.88 

Papers  and  other  reading  matter  5.00 

Recreation   40.00 

Furniture,  utensils,  fixtures,  moving  expenses,  etc 18.00 

Church  dues 5.00 

Incidentals  —  soap,  washing  material,  stamps,  etc 5.00 

Total $844.94 


(e)  Estimating  the  Budget  from  Food  Expenditure 

It  is  generally  accepted  that  a  man  at  moderate  physical  labor 
needs  3500  calories  a  day  and  Atwater  has  estimated  the  needs  of 
the  individual  nicmbcr.s  of  his  family  in  per  cents  of  his  needs.  Thus 
his  wife  consumes  0.8  as  much ;  a  boy  of  IG  years  of  age,  0.9  as  much; 
a  girl  15  to  16,  0.8;  a  child  from  6  to  9  years,  0.5;  and  so  on.  We 
thus  express  a  family  in  terms  of  adult  males.    We  say  that  a  family 


APPENDIX  999 

of  five  —  man,  wife,  and  three  children  —  will  equal  3.3  adult  males 
when  the  children  are  at  a  certain  age. 

The  average  food  budget  of  600  families  of  shipyard  workers  in 
the  New  York  district  collected  by  the  Bureau  of  Labor  Statistics 
was  found  to  cost  $607  for  3.6  equivalent  adult  males.  This  was 
submitted  to  calory  analysis  and  yielded  3115  calorics  of  energy  for 
man  per  day,  not  including  any  waste.  This  means  that  $607  did 
not  furnish  enough  food  for  the  New  York  families.  A  food  expert 
might  have  bought  the  necessary  amount,  but  the  families  in  actual 
practice  did  not. 

Dietaries  should  be  well  balanced  also,  but  this  analysis  was  not 
undertaken.  So  the  important  conclusion  results  that  in  the  New 
York  shipbuilding  area  $607  is  not  enough  of  an  allowance  for  food. 

Professor  Chapin's  study  shows  that  at  the  point  where  the  families 
cease  to  be  undernourished,  food  is  44  per  cent  of  the  total  budget. 
Now,  if  the  low  figure  of  $615  is  taken  as  the  food  allowance  for  a 
family  of  3.3  or  3.4  equivalent  adult  males  and  estimated  at  44  per 
cent  of  the  budget,  we  get  a  minimum  budget  of  $1396. 

(f)  Summary  of  Estimates  on  Minimum  Budgets  for  American 
Subsistence  Level  in  1918 

From  three  angles,  therefore,  an  estimate  may  be  formed  of  a 
minimum  budget:  (1)  from  study  of  actual  budgets,  (2)  from  apply- 
ing increased  costs  of  living  to  recognized  standard  budgets,  (3)  from 
estimates  of  adequate  food  allowance  and  its  percentage  of  expend- 
itures. 

These  estimates  for  New  York  district  in  1918  are  as  follows: 

1.  Prof.  Ogburn's  detailed  budget  from  family  studies  ....  $1,386 

2.  Chapin's  budget  brought  to  date 1,395 

New  York  Factory  Investigation  Commissions'  Budget 

brought  to  date 1,356 

New  York  Board  of  Estimate  Budget  brought  to  date  1,317 

3.  From  food  allowance    1,396 

The  Above  Studies  Brought  Up  to  1919 

The  above  estimates  were  all  made  as  of  June,  1918,  or,  if  made 
at  an  earlier  date,  were  brought  up  onlj'  to  that  date  in  Professor 
Ogburn's  analysis.  Between  June,  1918,  and  the  present  time  (i.  e., 
the  latter  part  of  1919)  figures  compiled  by  the  U.  S.  Bureau  of  Labor 
Statistics  show  an  increase  of  about  15  per  cent  in  general  cost  of 
living.  Applying  this  percentage  increase  to  the  figures  compiled  by 
Professor  Ogburn  in  the  preceding  table,  the  following  results  are 
obtained : 


1000 


APPENDIX 


Various  Authoritative  Estimates  of  the  Annual  Cost  of  Maintaining  a 

Family  at  a  Minimum  of  Subsistence  Level,  Brought  up  to 

August,  1919 

June  August 

1918  1919 

Ogburn's  Budget   $1,386  $1,594 

Chapin's  Budget    1,395  1,604 

New  York  Factor}-  Investigation  Commission  .  1,356  1,559 

New  York  Board  of  Estimate  Budget   1,317  1,515 

Budget  compiled  from  food  allowance 1,396  1,605 

Average  of  all  five  estimates $1,370  $1,575 

Inasmuch  as  these  various  estimates  are  so  closely  similar,  the 
average  of  the  five  —  namely  $1575  —  may  be  taken  as  the  approxi- 
mate amount  necessary  to  maintain  a  family  of  five  at  a  minimum  of 
subsistence  level  at  prices  prevailing  in  the  latter  part  of  1919. 


2.     THE  COST  OF  A  MINIMUM  OF  COMFORT  BUDGET 

(a)  Professor  Ogburn's  Budget 

Professor  W.  F.  Ogburn  [then  in  charge  of  the  cost-of-living  sec- 
tion of  the  National  War  Labor  Board]  prepared  in  1918,  for  the 
consideration  of  the  National  War  Labor  Board  and  of  Judge  Samuel 
Alschiiler,  arbitrator  in  the  Chicago  Packing  house  industries,  a 
budget  for  an  average  workingman's  family  of  five  which  would 
include  not  only  subsistence  requirements  but  a  minimum  of  com- 
fort and  recreation.  The  cost  of  this  budget  was  placed  at  $1760. 
This  was  at  prices  prevailing  in  June,  1918.  Since  that  date  the 
cost  of  living,  as  above  noted,  has  increased  15  per  cent.  This  would 
make  the  present  cost  of  the  budget  $2024.  By  major  items,  this 
budget  was  distributed  as  follows: 

Cost  June  Cost  August 

1918  1919 

Food   $625.00 

Clothing  313.50 

Rent,  fuel  and  light   295.00 

Sundries   527.00 

Total   $1,760.50  $2,024.00 


APPENDIX  1001 

The  detailed  items  of  Professor  Ogburn's  budget  are  as  follows:^ 

Minimum  Comfort  Budget  for  a  Family  of  Five  {Parents  and  Three 
Children)  at  Prices  Prevailing  in  June,  1918 

DETAILED    ITEMS 

Food   $625.00 

Clothing: 

Man    92.50 

Woman 87.00 

Boy,  13  years 57.00 

Girl,  8  to  10  years 37.50 

Boy,  4  to  7  years    39.50 

Rent" \ 220.00 

Fuel  and  light   75.00 

Insurance  and  savings   150.00 

Health 00.00 

Furnishings    50.00 

Education 20.00 

Carfare   55.00 

Organizations  (church,  labor  and  others)  24.00 

Comforts  (tobacco,  candy,  gifts,  etc.)     43.00 

Recreation   50.00 

Miscellaneous  (cleaning,  stamps,  barber,  etc.)  75.00 

Total $1,760.50 

FOOD 

600  pounds  meat:,  fish  and  cheese    $175.00 

730  quarts  of  milk    96.00 

80  dozen  eggs 34.00 

8  pounds  beans 14.00 

360  pounds  flour     24.00 

360  pounds  cornmeal   26.00 

200  pounds  cereals    20.00 

48  pounds  macaroni  5.00 

50  pounds  rice 6.00 

600  pounds  potatoes 13.00 

600  pounds  vegetables  36.00 

600  pounds  fruits    30.00 

120  pounds  butter 60.00 

75  pounds  lard,  oils  and  fats 25.00 

250  pounds  sugar    23.00 

40  pounds  coffee 12.00 

12  pounds  tea    6.00 

Sundries   20.00 

Total $625.00 

1  The  details  of  the  budget  are  given  as  printed  in  Standards  of  Living  (Re- 
vised ed.  1920),  Bureau  of  Applied  Economics,  Washington,  D.C.,  pp.  92-95. 


1002  APPENDIX 

CLOTHING 

Man 

Ch^ercoat S6.50 

Sweater 2.50 

Suit  or  uniform     25.00 

Trousers  8.00 

Shoes  and  repair 15.00 

Overshoes 1.50 

Underwear  6.50 

Night  garments 2.00 

Hats    4.00 

Shirts    6.50 

Socks 4.50 

Gloves 6.00 

Ties,  collars  and  handkerchiefs 2.00 

Suspenders  and  garters    1.00 

Incidentals 1.50 

Total $92.50 

Womaji 

Top  coat S8.00 

Suits   12.50 

Shoes  and  repair     12.00 

Overshoes .75 

Underwear 5.00 

Nightgowns   3.00 

Underskirt   2.50 

Corsets   4.00 

Kimona .50 

Waists 5.00 

House  dresses    5.00 

Street  dress    ".50 

Hats    9.00 

Gloves 2.50 

Stockings    2.00 

Aprons    2.25 

Umbrella    1.00 

Incidentals  (veils,  pins,  brushes,  handkerchiefs,  furs,  slip- 
pers, etc.)  4.50 

Total     $87.00 


APPENDIX  1003 

Boij  13  and  Over 

Top  coat  and  sweater $7.50 

Suit  and  trousers 17.00 

Shoes  and  repair     16.00 

Underwear     4.00 

Night  garments 1.50 

Hats    3.50 

Shirts    3.50 

Stockings  and  socks   2.50 

Ties,  handerchiefs,  etc 1  .TyO 

Total $57.00 

Girl  8  to  10 

Top  coat  and  sweater $6.00 

Rubl)ers    1.50 

Shoes  and  repair  15.00 

Underwaists  and  garters    1.50 

Dresses  (school  and  best)    6.00 

Petticoats  (or  bloomers)    1.50 

Underclothes .... 

Night  garments    .... 

Hats    2.00 

Stockings    2.00 

Ribbons  and  handerkchiefs 1.00 

Umbrella    1.00 

Total $37.50 

Boy  4  to  7 

Top  coat  and  sweater $4.50 

Shoes  and  repair  15.00 

Rubbers    1.50 

Suits  (work,  best,  overalls)   9.00 

Underwear .... 

Underwaists  and  garters    1.50 

Night  garments .... 

Hats  and  caps  1.00 

Waists  and  blouses  2.50 

Mittens,  ties,  handkerchiefs    1.00 

Stockings    3.00 

Total $39.50 1 

RENT,  WATER,  FUEL   AND    LIGHT 

House,  5  or  6  rooms,  with  water $220.00 

Coal,  wood,  gas  and  light 75.00 

Total $295.00 

^  The  error  of  50  cents  in  this  total  occurs  in  the  original. 


1004  APPENDIX 

SUNDRIES 

Insurance  and  savings $150.00 

Organizations  (labor  and  other) 15.00 

Education  (newspapers,  magazines  and  books)  20.00 

Church   9.00 

Heahh  (physicians,  drugs,  dentist)   60.00 

Furnishings 50.00 

Carfare • 55.00 

Cleaning  and  laundry 25.00 

Tobacco 15.00 

Gifts  (Christmas,  etc.)  8.00 

Candy 5.00 

Drinks 15.00 

Amusements  and  vacations,  etc 50.00 

Stamps,  barber,  stationery,  etc 15.00 

Exigencies  and  waste  35.00 

Total $527.00 

(b)  U.  S.  Bureau  of  Labor  Statistics'  Budget  for 

Go\TBRNMENT  EmPLOYEE's  FaMILY  ^ 

The  U.  S.  Bureau  of  Labor  Statistics  has  just  pubhshed,  after 
very  considerable  investigation,  a  quantity  and  cost  budget  for  a 
Government  employee's  family  in  Washington,  D.  C.  The  budget 
level  aimed  at  is  one  of  health  and  decency  —  that  is  to  say  —  a 
level  at  which  the  family  will  have  just  enough  to  maintain  itself 
in  health  and  decency,  but  with  none  of  the  "trimmings"  and  very 
few  of  the  comforts  of  life.  This  budget  had  in  mind  primarily  the 
clerical  employee,  but  except  possibl}''  in  the  matter  of  clothes  there 
seems  no  reason  why  the  level  of  a  clerical  worker  should  be  more 
costly  than  that  of  a  mechanic  or  laborer.  On  the  other  hand,  Wash- 
ington prices  were  undoubtedly  above  the  average  for  the  country 
as  a  whole. 

This  budget,  at  August,  1919,  prices,  cost  $2262.  The  distribu- 
tion of  its  principal  items  is  shown  in  the  following  table: 

'  Report  prepared  by  the  United  States  Bureau  of  Labor  Statistics,  under  the 
title,  "Tentative  Quantity  and  Cost  Budget  Necessary  to  Maintain  a  Family  of 
Five  in  Washington,  D.  C.,  at  a  Level  of  Health  and  Decency."  The  report  is 
reprinted  in  part  in  Standards  of  Living  (Rev.  ed.,  1920),  pp.  26-31.  —  Ed. 


APPENDIX  1005 


Summary  of  Budget 

COST   OF    QUANTITY    BUDGET   AT   MARKET   PRICES 

I.  Food $773.93 

II.   Clothing: 

Husband   $121.16 

Wife   166.46 

Boy  (11  years)   96.60 

Girl  (5  years)    82.50 

Boy  (2  years)    47.00         513.72 

III.   Housing,  fuel  and  light 428.00 

IV.  Miscellaneous 546.82 


Total  budget  at  market  prices $2,262.47 

Possible  saving  upon  market  cost  by  a  family  of  extreme 
thrift,  of  high  inteUigence,  great  industry  in  shopping, 
good  fortune  in  purchasing  at  lowest  prices,  and  in  which 
the  wife  is  able  to  do  a  maximum  amount  of  home  work. 

I.  Food  (7|  per  cent) $58.04 

II.   Clothing  (10  per  cent)    51.37 

XII.   Housing 30.00 

IV.  Miscellaneous 97.50 

Total  economies 236.91 


Total  budget  minus  economies $2,025.56 

Savings.  —  No  provision  is  made  in  this  budget  for  savings,  other 
than  the  original  cost  of  household  furniture  and  equipment,  which 
would  average  about  $1000  in  value.  No  definite  estimate,  of  course, 
can  be  made  as  to  the  amount  which  a  low-salaried  Government 
employee  should  be  expected  to  save.  But  an  average  saving  of  12 § 
per  cent  of  yearly  salary  during  an  employee's  single  and  early  mar- 
ried life  would  seem  to  be  the  maximum  which  could  be  expected. 
Over  a  period  of,  say,  15  years  this  would  result  in  a  total  accumula- 
tion of  about  $2000.  Assuming  $1000  of  this  to  be  invested  in  house- 
hold equipment,  there  would  be  a  net  sum  of  $1000  available  for 
investment  in  a  home  or  in  other  direct  income-producing  form.  In 
any  case,  it  would  represent  an  annual  income  of  approximately  $50 
per  year. 

Recognizing  the  high  prices  prevailing  in  Washington,  and  recog- 
nizing also  that  the  Government  employee's  family  may  have  certain 
necessary  expenses  not  falling  upon  the  workingman's  family,  it 
would  seem  that  the  fact  that  this  budget  cost  $2662  would  tend  to 
confirm  the  $2000  minimum  comfort  budget  of  Professor  Ogburn 
as  conservative  for  workingmen's  families  generally  in  the  country 
as  a  whole. 


INDEX 


4 


INDEX 


A  Page 

Acts.     See  Statutes 
Adamson  law  863 

Admission   of   moinbers   into  unin- 
corporated association  68G 
Agents  of  labor  unions,  lial)ility  of    608 
Agreements,  trade  644 
"All   persons  generally"   and   "all 
persons  whomsoever",  injunc- 
tions against   748,  751,  757,  757n 
Alteration  of  by-laws               679,  683n 
American  cases,  early                99,  lllw 
Anti-picketing-injunction  statute     220 
Apparel  of  servants                      8,  9,  29 
Arbitration,  compulsory,  see  Austra- 
lian Court  of  Conciliation  and 
Arbitration,  Kansas  Court  of 
Industrial  Relations,   South 
Australian  Industrial  Court 
Arbitration  of  differences,  legality 

of  strike  to  compel  366 

"Arising  out  of  the  employment," 
see  Workmen's  Compensa- 
tion Laws 
Association  assets  belonging  to  un- 
incorporated group,  liability 
with  respect  to  577 

Contract  liability  577 

At  law  577 

In  equity  579,  582 

Tort  liability        533, 588, 591,  cf.  631 
Unauthorized  violence  on  the 

part  of  union  members  237,  638 
Statutes  relieving  trade-unions 
of  tort  liability  586,  591 

Association,  right  of  33 

Australian  Court  of  Conciliation  and 

Arbitration  881 

The  living  wage 

881,  882,  883,  888,  890 
Minimum  wage  883 

Unprofitable  business  888 

The  basic  wage  890 

Hours  of  work  898 

Conditions  of  working  903 

B 
Bannering  453,  460n 

Basic  wage,  as  fixed  by  Industrial 

Courts  890 

See  also  Living  Wage 
Black  list  468 

Constitutionality    of    anti-black- 
listing statutes  476, 478n 
Boycotts  394 
Primary  boj-cott                             394 


Page 

Secondary  boycott  403 

Commercial  cases        403,  406,  40S 

Labor  cases  413ff 

Attitude  of  federal  courts         433?i 

Boycott  of  materials  434 

Legality  of  boycotts  under  the 

Sherman  Anti-Trust  Act        440 

Non-coercive  boycott  453 

Legality  of  467n 

The  "Unfair  List"  453 

Tertiary  boycott  467n 

Branding  labourers  8 

Breach  of  contract,  inducing  154 

Enticement  of  servants 

154,  155,  176,  177,  181n 
Lumlcy  v.  dye  157,  164n 

Strikes  in  breach  of  contract 

169«,  171,  489 
Justification  169,  173,  174 

"Malice"       160,  163,  169«,  175,  179 
Budgets  of  workingmen  Appendix 

By-laws  of  unincorporated  associa- 
tions 
Attitude  of  courts  toward  valid 

bv-laws  672 

Illegaf  by-laws  384,  673  «.  2 

Presumed  knowledge  of,  b\  mem- 
bers 678 
Alteration  of                          679,  683« 
Discipline  of  members  unauthor- 
ized by                   698,  701,  707n 


Canadian    Industrial   Disputes  In- 
vestigation Act  875 
Legalitj'  of  strikes  under  879 

Cash  payment  of  wages,  legislation 

regulating  857,  860 

Ceasing  to  patronize,  see  Boj'cotts 

Chapin    budget    for    workingmen's 

families  A  ppendix 

Chaplains,  parochial,  not  servants 

within  Stat,  of  Labourers        28 

Charter  of  local  association,  revoca- 
tion of,  by  national  organi- 
zation 712 

"Check-off"  509 

Children  and  women,  legislation 
regulating  the  emulovment 
of  806,  809, '813,  813n 

Civil  conspiracy  59 

Some  overt  act  other  than  con- 
spiring necessary  59,  61n 
As  applied  by  English  courts  to 
labor  cases  67« 


1009 


1010 


INDEX 


Page 
Clayton  Act  145,  213,  220,  440,  453n 
Closed  shop 

Legality  of  strike  to  secure  the  275 
Cases  holding  such  strikes  legal  31  In 
Cases  holding  such  strikes  illegal 

318«. 
Legality  of  trade  agreement   to 
secure  the  331 

Clothing,  cost  of,  in  workingmen's 

budgets  Appendix 

Coercive  secondary  boycott  403 

Collective  action,   legality  of  ends 
pursued  through,  see  Legality 
of  Ends  Pursued 
Collective    agreements,    see    Trade 

Agreements 
Combination  Act,  1800  18 

Combination  Act,  1824  20 

Combination  Act,  1825  21 

Combination,  legality  of  33 

Combinations  in  restraint  of  trade, 
see  Restraint  of  Trade,  Fed- 
eral Jurisdiction  over  Labor 
Disputes 
Combinations  with  reference  to  the 
Shermon  Anti-Trust  Act 
Business  combinations  112,  118 

Labor  unions  121,440,553 

Commodity,  labor  not  a  145 

Communistic  societv  568 

Competition,  trade "  250,  252,  259,  275 
Compulsory  arbitration,  see  Aus- 
tralian Court  of  Concilia- 
tion and  Arbitration,  Kansas 
Court  of  Industrial  Relations, 
South  Australian  Industrial 
Court 
Compulsory  arbitration  of  railway 

disputes  863 

Compulsory  service  and  the  Thir- 
teenth Amendment,  see  Thir- 
teenth Amendment 
Conclusiveness  of  findings  of  state 
commission    in    Workmen's 
Compensation  Cases  954 

Conditions  of  working,  determina- 
tion of,  by  Industrial  Courts 

903,  936,  943 
See  also  Hours  of  Work 
Conditions  of  working,   legality  of 

strike  for  improved  264 

Consjiiracy  37 

Criminal,  see  Criminal  Conspiracv 
Civil  ■    59 

Conspiracy,  and  Protection  of  Prop- 
erty Act,  1875  23 
Conspiracy  Statute  (U.  S.)  58 
Conspiring  to  niiso  wages,  journev- 
ineii  coiifi'df^rating  and 

33,  34,  36  n.  2,  44,  99,  102,  104 
Constitutionality  of 

Arizona  an ti-picketing-in junction 
statute  220 


Page 
Anti-blacklist  statutes  476 

Statutes  for  protection  of   union 

label  484 

Statutes  for  relieving  trade  unions 

of  tort  liability  586 

Statutes  for  protection  of  indus- 

triallj'  weaker  classes  842ff 

Kansas  Court  of  Industrial  Re- 
lations Act  945 
Workmen's  Compensation  Laws    954 
Contempt    proceedings    for    know- 
ingly assisting  in  the  breach 
of     an      injunction      issued 
against  others          736,  737,  742 
Contract,  inducing  breach  of  154 
Enticement  of  servants 

154,  155,  176,  177,  181ft 
Lumley  v.  Gye  157,  164ft 

Strikes  in  breach  of  contract 

169ft,  171,  489 
Justification  169,  173,  174 

"Malice"       160,  163,  169»,  175,  179 
Contracts  of  personal  service,  en- 
forcement of 
by  specific  performance  771 

by  criminal  law  774 

Contracts  with  trade  unions  644 

Cordwainers'  cases  99,  102 

Corporate  rights,  powers  and  lia- 
l>ilities  of  unincorporated 
labor  unions  517 

Suits  by  and  against  unincorpor- 
ated labor  unions  517 
At  law  517 
Lender  statute                              522 
In  equity  524 
Federal  Equity  Rule  No.  38      527 
English  law                                  527 
Lender  Sherman  Act                    533 
Ownership  of  property                   554 
Realty                                         555ft 
Personalty                                  555ft 
Liability  with  respect  to  associa- 
tion assets                                577 
Contract  liability                        577 
At  law                                       577 
In  equity                         579,  582 
Trade  agreements                   644 
Tort  liability  533,  588,  591,  cf.  631 
Unauthorized     violence     on 
the  part  of  union  members 

237,  638 
Statutes       relieving      trade 
unions  of  tort  liability  586,591 
Ultra  vires  doctrine  as  aj)|)iied  to 
unincorporated  associations  596 
Unauthorized     use    of    trade 
union  funds  599 

Cost  of  sul)sistcnc(>  of  workingmen 

Appendix 
See  also  Living  Wage 
Criminal  conspira(;y  37 

Ordinance  of  conspirators  37 


INDEX 


1011 


Page 
Does  not  consist  in  general  aets 

of  oppression  38 

Overt  acts  other  than  conspiring 

39,  40,  55 

Hawkins'  statement  42 

Effect  of  fraud  49,  52,  56n 

P'ederal  conspiracy  statute  58 

Criminal  Law  Amendment  Act,  1871  22 

D 

"Danbury  Hatters'  Case"  (Loewe 

v.  Lawlor)  121 

Dangerous  occupations,  legislation 
regulating  employment  in 

819,  898 
Diet  and  apparel  of  servants  8 

Discharged  employee,  legality  of 
strike  to  compel  employer  to 
re-employ  a  378 

Discipline    of    members    of    labor 

unions  690 

Fines  690 

Suspension  of  local  charter  691 

Expulsion  692,  708 

Discipline   unauthorized   by   by- 
laws 696 
Discipline   without   notice    or   a 
chance  to  be  heard 

698,  701,  707n 
Dues,  liability  of  members  of  unin- 
corporated association  for     678 

E 

Earliest  use  of  injunction  to  pro- 
tect employers  against  strik- 
ing employees  718 
Earliest      important      American 
case                                           724 
Early  American  labor  cases        99,  11  In 
Employers'    liability,     see     Work- 
men's Compensation  Laws 
Employment  in  a  business  charged 

with  a  public  interest  862 

Railways  and  common  carriers 

862,  863 
Adamson  law  862 

War  industry  871 

Employment,  legality  of  strikes  to 
secure  increased  opportunity 
of  268 

Ends    pursued    through    collective 
action,   legality  of,    see    Le- 
gality of  Ends  Pursued 
English  picketing  legislation  236 

English  statutes,  see  Statutes 
Engrossers  68,  69,  70 

Enticement  of  servants 

154,  155,  176,  177,  181w 
Equity  Rule  No.  38  (federal)  527 

Exhaustion  of  remedies  afforded  by 
association,  legal  action  be- 
fore 673,  683,  690,  691 


Page 

Expulsion   of  iiiciiiIkts  from   trade 

unions  708 

Basis  of  equitable  relief  712r( 

Extortion  349, 350 


Federal  Equity  Rule  No.  38  527 

Federal  jurisdiction  over  labor  dis- 
putes 112 
Sherman  Anti-Trust  Act  112 
Business  combinations           112,  118 
Labor  unions  and  the  Sherman 

Act  121,440,533 

Violation     of     Interstate     Com- 
merce Act  127 
Obstructing  the  mail              135,  138 
Clayton  Act                                     145 
Fines  imposed  upon  union  members  690 
l^'ines,  legality  of  strikes  to  compel 
payment  of 
Levied  against  employer               344 
Levied  against  employees              354 
Fixing  of  wages  by  justices          15,  29 
Food,    cost    of,    in    workingmen's 

budgets  Appendix 

Forestallers  68, 69 

Fourteenth  Amendment,  see  Regu- 
latory Labor  Legislation 
Fraud,  in  conspiracy  cases     49,  52,  56n 
Fuel,     cost    of,     in    workingmen's 

budgets  Appendix 

G 

"Government  by  Injunction"  751,  761 
Railway  strike  of  1894  751 

Coal  strike  of  1919  757 

Dangers  of,  and  criticism  of  759,  761 

Government  of  unions,  see  Internal 
Government  of  Unions 

H 

Hawkms  on  conspiracy  42 

Hours,  legality  of  strike  for  shorter  264 
Hours  of  labor.  Act  of  5  Eliz.  c.  4 

(1562)  14 

Hours  of  labor,  legislation  regulat- 
ing 826,  833 
Hours  of  labor  fixed  bv  Industrial 

Courts  ^    898,  932,  936 

Higher  wages,  legality  of  strike  for  264 
Historical   development   of  the  in- 
junction    remedy     in     labor 
cases  717 

Earliest  use  of  injunction  to  pro- 
tect employers  against  strik- 
ing employees  718 
Earliest  important  American  case  724 

I 

Illegal  union  by-laws  383 

" In  the  course  of  the  employment, " 
see    Workmen's      Compensation 
Laws 


1012 


INDEX 


I 


Page 
Inducing  breach  of  contract  154 

Enticement  of  serA-ants 
f  154,  155,  176,  177,  181?i 

linmley  v.  Gije  157,  164n 

Strikes  in  breach  of  contract 

169/i,  171,  489 
Justification  169,  173,  174 

"Malice"  160,  163,  169«,  175,  179 
Industrial  Courts,  see  Australian 
Court  of  Conciliation  and 
Arbitration,  Kansas  Court  of 
Industrial  Relations,  South 
Australian  Industrial  Court 
Injunctions  717 

Historical  development  of  injunc- 
tion remedy  •         717 
Earliest   use   of   injunction   to 
protect  employers  from  strik- 
ing employees  718 
Earliest    important    American^ 
case  724 
Injunctions  against  unnamed  par- 
ties                             .               734 
Doctrine  that  injunctions  can 
be  issued  against  only  parties 
to  suit  734 
Injunctions    including    party's^ 

agents,  employees,  etc.  736 

Contempt  for  knowingly  assist- 
ing in  the  breach  of  an  injunc- 
tion 736,  737,  742 
Suits  against  a  few  members  as 
representative  of  a  larger 
group  737,  748,  751,  757 
Tnder  Federal  Equity  Rule 

527,  737 
Injunctions   against    "all   per- 
sons generally,"  and  against 
"all  persons  whomsoever" 

748,  751, 757, 757n 

"Government  by  Injunction'      751 

Railway  strike  of  1894  751 

Coal  strike  of  1919  757 

Dangers  of,  and  criticism  of 

759,  761 
General  limitations  upon  the  issue 
of  injunctions  762 

Generality    and    vagueness    of 

complaint  762,  765 

I'rohibitions  nnist  be  clear  and 

explicit  7<)7,  768 

Prohibitions    must    be    limited 

to  acts  thrcsatened  768,  769 

Prohibitions  must  not  be  so 
broad  as  to  include  lawful 
acts  770 

Constitutionality  of  statutes 
al)olisliiiig  the  iiijiiiictive 
r<>medy  220,  770n 

Clayton  Act  145 

Use  in  labor  cases  23 Iff 

Insults  181 


Page 
Internal  government  of  unions         672 
Regulation  of  internal  affairs       672 
Attitude  of  courts  toward  valid 

by-laws  672 

Invalid  by-laws  384,  673  n.  2 

Application  to  national  organi- 
zation for  charter  673 
Legal  action  before  exhaustion 
of  remedies  afforded  bv  as- 
sociation         673,  683,  690,  691 
Liability  of  members  for  dues  678 
Presumed    knowledge    of    by- 
laws by  members  678 
Alteration  of  by-laws       679,  683n 
Admission  of  members  686 
Discipline  of  members  690 
Fines  690 
Suspension  of  local  charter        691 
Expulsion  692 
Discipline  unauthorized  bv  by- 
laws                                 "^     '   696 
Discipline  without  notice  or  a 
chance  to  be  heard 

698,  701,  707n 
Expulsion  of  members  708 

Expulsion   without   reasonable 

cause  or  without  a  fair  trial  708 
Basis  of  equitable  relief  in  cases 

of  expulsion  712n 

Revocation  of  charter  of  local 
association  712 

Interstate    commerce,    see    Federal 
Jurisdiction  over  Labor  Dis- 
putes 
Interstate  Commerce  Act,  striking 

in  violation  of  127 

Intimidation  181 

Issue  of  injunctions,  general  limita- 
tions upon,  see  Limitations 
upon  Issue  of  Injunctions 


Journeymen     conspiring    to     raise 
their  wages 
33,34,  36//. 2,  44,  99,  102,  104 
Jury  trial,  and  its  relation  to  "gov- 
ernment  by   injimction  "        761 
Justices,  empowcreil  to  fix  wages  15,  29 
Justification 

The  .strike  147 

For  inducing  breach  of  contract 

169, 173, 174 
In  trade  disputes,  geiicndlv 

203;  250,  252 

K 

Kansas   Court    of    Industrial    Kel;i- 

tions  918 

Kan.sas  Court    of    Industrial    Re- 
lations Act  918 
The  living  wage                      923,  928 


f 


INDEX 


1013 


Page 
Unprofitable  business  928 

Hours  of  work  932,  936 

Wages  and  general  conditions  of 

work  930, 943 

Constitutionality  of  Kansas  Court 
of  Industrial  Relations  Act    945 
ICnowledge  of  by-laws  of  unincor- 
porated association  i)resunied 
on  the  part  of  members  678 


L 
Label,  union  479 

Labor   legislation,    see    Regulatory 

Labor  Ijegislation 
Labourers 

Ordinance  of  3 

Statute  of  5 

Legality  of  combination  33 

Legality  of  ends  pursued  through 

collective  action  242 

Effect  of  motive  upon  iegalitv  of 
acts  242 

Trade  competition  250 

Justification  250 

Strikes  to  secure  higher  wages, 
shorter  hours,  or  improved 
working  conditions  264 

Strikes  to  secure  increased  op- 
portunity of  employ  ment        268 

Strikes  to  force  the  discharge  of 
non-union  men  and  to  union- 
ize shops  275 
Cases     holding     such     strikes 

legal  31  In 

Cases  holding  such  strikes  il- 
legal 318/1 
English  cases  324n 

Trade  agreements  for  unioniza- 
tion of  shops  331 

Strikes  to  compel  payment  of  lines 
levied  against  employer         344 

Strikes  to  compel  payment  of 
fines  levied  against  employee  354 

Strikes  to  secure  closed  shop  niles  366 

Strikes  to  compel  arbitration  of 
differences  366 

Strikes  against  emploj'ers  guilty 
of  a  breach  of  good  faith        377 

Strikes  to  compel  employer  to  re- 
employ a  discharged  em- 
ployee 378 

Strikes  to  comi)el  employer  to 
continue  an  unprofitable  de- 
partment of  his  business        380 

Strike  to  compel  employer  to  em- 
plov  more  workers  than  he 
desires  381 

Collective  action  to  enforce  illegal 
by-laws  385 

Strikes  for  more  than  one  purpose  388 
Legality  of    means  used  by  labor 

organizations  147 


Page 
The  strike  147 

Inducing  breach  of  contract  154 

Violence.     Intimidation  181 

Peaceful  persuasion  194 

Picketing  2(X) 

Violence   on   the    part    of   union 
members  237 

Legislation  relating  to  labor,  see 
Regulatory  Labor  Legislation 
Liability  of  members  of  trade  unions 
for  authorized  or  unauthor- 
ized acts  on  the  part  of  other 
union  members 

238,  240/^  612,  ff. 
Liability  of   members   of    unincor- 

jjorated  associations  for  dues  678 
Liability^  of  officers  and  agents  of 

labor  unions  608 

Liability  of  unincorporated  associa- 
tions, see  Corr)orate  Rights, 
Powers  and  Liabilities  of  Un- 
incorporated Labor  L'nions 
Liability  of  union  for  violence  on 
part  of  union  members 
See  also  Chap.  XI  237,  238n 

Liberty  of  contract  842,  856rt 

Limitations  upon  issue  of  injunc- 
tions 762 
Prohibitions  must  be  clear  and 
explicit                              767,  768 
limited  to  acts  threatened    768,  769 
not  so  broad  as  to  include  law- 
ful acts  770 
Generality     and     vagueness     of 
complaint                         762,  765 
List, 

"Unfair  List"  453 

Black  List  468 

Living  wage.  The       881,  882,  883,  888, 

890,  923,  928  Appendix 

Lockouts  390 


IM 


135,  138 

248 


Mail,  obstructing  the 
Malevolence 

See  Motive,  Malice 
"Malice" 

Inducing  breach  of  contract 

160,  163,  169«,  175,  179 
Holmes,  J.,  as  to  "malice"  203 

Effect  of  wrongful  motive  upon 

Iegalitv  of  acts  242 

Malevolence  242,  247,  248 

Materials,  boycott  of  434 

Means  used  by  labor  organizations, 
legality  of,  see  Legality  of 
Means 
Members,  admission  of,  to  unincor- 
porated associations  686 
Members  of  labor  unions,  rights 
and  liabilities  of,  in  respect 
to  third  parties  608 


1014 


INDEX 


Page 
Officers  and  agents  608 

Individual  members  612 

Contract 

612,  614,  617,  623,  625,  627 
Tort  238,  240h  ,  631 ,  636,  638 

Trade  agreements  644 

Minimum  of  comfort  and  subsist- 
ence, budgets  for  workingmen 

Appendix 
Minimum  wage,  determination  of, 
by  Industrial  Courts 

883,  890,  905 
See  also  Living  Wage 
Minimum  wage  laws 

837,  842  n.i,  883,  905 

Monopolies  68 

English  cases  68ff 

American  cases  73ff 

Labor  unions  as  monopolies 

80,  83,  86,  97n 
Sherman  Anti-Trust  Act  112 

Clayton  Act  145 

Trade  agreements  for  unioniza- 
tion of  shops  331 
More  workers  than  employer  desires, 
legality  of  strike  to  compel 
employer  to  employ  381 
Motive,  effect  of,  upon  legality  of 

acts  242 

N 

Non-coercive  boycotts  453 

Legality  of  467w 

Non-coercive  persuasion 

194,  453,  467n 
Non-union  fields,  attempts  to  union- 
ize 489,  504,  509 
Non-union  men,  legality  of  strikes 

to  compel  the  discharge  of    275 
Cases  holding  such  strikes  legal  31  In 
Cases    holding    such    strikes    il- 
legal 3187i 
Notice  and  a  chance  to  be  heard, 
discipline     of     labor     union 
members  without 

698,  701,  707ri 

O 

Oaths,  secret,  forbidden  by  law  36 

Obstnicting  the  mail  135,  138 

Occupational  injury  979 

Officers  of  labor  unions,  liability  of  608 
Ogburn    budget   for   workingmen's 

families  Appendix 

"Omnibus  bill"  756n 

Opportunity  of  emi)loyment,  legal- 
ity of  strikes  to  secure  in- 
creased 268 
Oppression,    consi)iracy    does    not 

consist  in  general  acts  of  38 

Ordinance  of  consj)irators  37 

Ordinance  of  labourers  3 


Page 
Organization  of  non-union  fields 

489,  504,  509 
Overt  act  other  than  conspiring,  in 

conspiracy  cases  39,  40,  55 

Ownership  of  property  bj'  unincor- 
porated associations  554 


Parties  to  suit,  doctrine  that  injunc- 
tions can  be  issued  against 
only  those  who  are  734 

Patronize,  ceasing  to,  see  Boycotts 
Peaceful  persuasion  194,  21  In 

Peaceful  picketing,  see  Picketing 
Permanent      labor      combinations, 

legality  of  in  U.  S.  99 

Persuading  another's  customers  to 

transfer  patronage  453 

Persuasion,  peaceful  194,  211n 

Picketing  200 

Cases  holding  picketing  legal       21  In 

Cases  holding  picketing  illegal     213n 

English  picketing  legislation  236 

Political   purposes,   expenditure   of 

trade  union  funds  for  599 

English  Trade  Union  Act  of  1913  25 
Primary  boycott  394 

Legality  of  398,  401,  402n 

Prohibition   of   strikes  in   light   of 
Thirteenth  Amendment,  see 
Thirteenth  Amendment 
Property ,  ownership  of,  b}'  unincor- 
porated associations  554 
Protective  legislation  for  an  indus- 
trially weaker  class       842,  861n 
Public   interest,   employment    in  a 

business  charged  with  a         862 

R 

Railway  disputes,  settlement  of 

138,  863,  870n 
Regrators  68, 69 

Regulation  of  internal  affairs  of  un- 
incorporated associations       672 
Attitude  of   courts  toward  valid 

l)v-laws  672 

Invalid  by-laws  384,  673  n.2 

Application  to  national  organiza- 
tion for  charter  673 
Legal   action    l)eforc   exhaustion 
of  remedies  afforded  bv  as- 
sociation           ()73,  (),S3,V)90,  691 
Liability  of  members  for  dues       678 
Presumed  knowledge  of  by-laws 

by  ineinl)ers  678 

Alteration  of  by-laws  679,  683n 

RegTilatory  lal)or  legislation  800 

General    prin(ij)ies.      The    Four- 
teenth Amendment  800 
Police  power                         800,  803 
Arbitrary  discrimination  803 


INDEX 


1015 


Page 
Emplovmoiit     of     women     and 

children  806,  809,  813,  HlSn 

Employment  in  dangerous  or  un- 

healthful  occupations  819,  898 
Hours  of  labor  in  general  826,  833 
Minimum  wage  laws 

837,  842  «.  1,883,  905 
Miscellaneous  protective  laws 

842,  86 In 
Liberty  of  contract  842,  856rt 

Screening  of  coal  851 

Cash  payment  of  wages.    Store 
orders  857,  860 

Rent,  cost  of,  in  workingmen's  bud- 
gets Appendix 
Representative  of  a  larger  group, 
suits  against  a  few  members 
as                      737,  748,  751,  757 
Under  Federal  Equity  Rule  527,  737 
Restraint  of  trade  68 
Regrating,    forestalling,   engross- 
ing                                  68,  69,  70 
Monopolistic  combinations            73ff 
Labor  unions  regarded  as  per  se 
in  restraint  of  trade 

80,  83,  97  n.  2 
Labor  unions  regarded  as  not  per 

se  in  restraint  of  trade  86 

Differentiation  between  labor  and 
commodities  in  general  with 
respect  to  restraint  of  trade     97 
A  question  of  policy  98 

Federal  jurisdiction  112 

Sherman  Anti-Trust  Act  112 

Clayton  Act  145 

Trade   agreements  for  unioniza- 
tion of  shops  331 
Revocation  of  local  charter  by  na- 
tional organization  712 
"  Right  of  Association  "  33 

S 
Screening  of  coal,  legislation  regu- 
lating 851 
Secondary  boycott  403 

See  Boycotts 
Sherman  Anti-Trust  Act  112 

See     also     Federal     Jurisdiction 
over  Labor  Disputes 
Shorter  hours,  legality  of  strike  for  264 
South  Australian  Industrial  Court  905 
Rates  of  wage  for  women  905 

Woman's  living  wage  905 

Standards  of  living  of  workingmen 

Appejidix 
See  also  Living  Wage 
Statute  of  La^Dourers  5,  27,  28 

Statutes 

English  Statutes 

Ordinance  of  Conspirators  (33 

Edw.  I)  37 

Ordinance    of    Labourers    (23 
Edw.  Ill)  3 


Page 
Statute  of  Labourers  (25  Edw. 

Ill)  5 

Act  of  34  Edw.  Ill  7 

Act  of  37  Edw.  Ill  8 

Act  of  12  Ric.  II  9 

Act  of  2  and  3  Edw.  VI,  c.  15  11 
Act  of  5  and  6  Edw.  VI,  c.  14  68 
Act  of  5  Eliz.  c.  4  12 

Act  of  7  Geo.  I,  .stat.  1,  c.  13  17 
Act  of  12  Geo.  Ill,  c.  71  (59 

Combination    Act,     1800     (40 

Geo.  Ill,  c.  106)  18 

Combination  Act,  1824  (5  Geo. 

IV,  c.  95)  20 

Combination  Act,  1825  (6  Geo. 

IV,  c.  129)  21 

Trade  Union  Act,  1871  (34  and 

35  Vict.  c.  31)  22 

Crim.  Law  Amend.  Act,   1871 

(34  and  35  Vict.  c.  32)  22 

Conspiracy  and  Protection  of 
Property  Act,  1875  (38  and 
39  Vict.  c.  86)  23 

Trade  Disputes  Act,    1906   (6 

Edw.  VII,  c.  47)  24 

Trade  Union  Act,  1913  (2  and 
3  Geo.  V,  c.  30)  25 

English  picketing  legislation  236 
American  Statutes 

Clayton  Act  (Oct.  15, 1914)  145 
Conspiracy     Statute     (U.     S. 

Crim.  Code)  58 

Court  of  Industrial  Relations 

Act  (Kansas)  918 

Obstructing  the  mail  135 

Sherman  Anti-Trust  Act  112 

-Canadian  Statute 

Industrial  Disputes  Investiga- 
tion Act  875 
Store  money -orders,  legislation  regu- 
lating                               857,  860 
Strikes  in  breach  of  contract 

169/i,  171,  489 
Strikes,  legality  of  147 

As  affected  by  violence  on  part  of 

union  members      237,  240/;,  241 
Strikes  for  higher  wages  264 

Strikes  for  shorter  hours  264 

Strikes  for  improved  working  con- 
ditions 264 
Strikes  to  secure  increased  oppor- 
tunity of  employment  268 
Strikes  to  force  the  discharge  of 
non-union  men  and  to  union- 
ize shops  275 
Cases  holding  such  strikes  legal 

311/t 
Cases  holding  such  strikes  il- 
legal 318n 
English  cases  324?j 
Strikes  to  compel  payment  of  fines 
levied  against  employer  344 


1016 


INDEX 


Page 
Strikes  to  compel  payment  of  fines 

levied  against  employee  354 

Strikes     to     secure     closed-shop 

rules  366 

Strikes  to  compel  arbitration  of 

differences  366 

Strikes  to  compel  change  in  sys- 
tem of  work  373 
Strikes  against  employers  guilty 

of  a  breach  of  good  faith        377 
Strikes  to  compel  employer  to  re- 
employ   a    discharged    em- 
ployee 378 
Strikes   to   compel   employer   to 
continue  an  unprofitable  de- 
partment of  his  business        380 
Strike    to    compel    employer    to 
employ  more  workers  than 
he  desires  381 
Collective  action  to  enforce  illegal 

by-laws  385 

Strikes  for  more  than  one  purpose  388 
Strikes,  prohibition  of,  in  the  light 
of    the    Thirteenth    Amend- 
ment, see  Thirteenth  Amend- 
ment 
Suabihty  of  unincorporated  unions, 
see     Suits     brought     by     and 
against  Unincorporated  La- 
bor Unions 
Suits  brought  by  and  agairist  unin- 
corporated labor  unions 

517,  521n 
At  law  517 

Under  statute  522 

In  equity  524 

Federal  Equity  Rule  No.  38         527 
English  law  527 

Under  Sherman  Act  533 

Sunstroke,     recovery     for,     under 
Workmen's  Compensation 
Laws  977, 978 

Suspension  of  charter  of  local  union 

by  national  organization        691 
Sweeping  injunctions  against   "all 
persons  generalh'"  and  "all 
persons  whomsoever" 

748,  751,  757,  757/t 


Tertiary  boycotts  467n 

Thirteenth  Amendrnent  771 

Compulsory  service  771 

Enforcement    of    contracts    of 
jjcrsonal  service  by 

specific  performance  771 

criminal  law  774 

C'ompulsory  work  law  777 

(Compulsory  service  by  seamen  780 

The  strike  782 

Compelling  individuals  to  serve 

782ff 


Page 
Restraining  leaders  from  calling 
a  strike  795 

Threats  181,  189,  193n,  205 

Trade,  restraint   of,   see   Restraint 

of  Trade 
Trade  agreements  644 

For  unionization  of  shops  331 

Trade  competition      250,  252,  259,  275 
Trade  Disputes  Act,  1906  24 

Trade  Union  Act,  1871  22 

Trade  Union  Act,  1913  25 


■  V 

"Ultra  Vires''  doctrine  as  applied 
to    unincorporated    associa- 
tions 596 
Unauthorized     use    of     trade 
union  funds  599 
L^nauthorized  acts  of  members,  lia- 
bility of  unincorporatecl  as- 
sociation for,  see  Corporate 
Rights,  Powers  and  Liabili- 
ties of  Unincorporated  Labor 
Unions 
Unauthorized   use   of   trade   union 

funds  599 

Unauthorized  violence  on  part  of 

union  members  237 

"Unfair  Lists"  453 

Unhealthful  occupations,  legislation 
regulating  emplovment  in 

819,  898 
Unincorporated     associations,     see 
Corporate    Rights,     Powers 
and   Liabilities  of    Unincor- 
porated Labor  Unions' 
ITnion  fines,  strikes  to  collect    344,  354 
I'nion  label  479 

Constitutionality  of  statutes  for 
protection  of  484,  488n 

Union  organizers  in  non-union  fields 

489,  504,  509 
Unionization  of  non-union  shops 

489,  504,  509 
Unionization  of  shops 

Legality  of  strikes  for  275 

Cases      holding      such      strikes 

legal  3Iln 

Cases    holding    such    strikes    il- 
legal 318n 
Legality  of  trade  agreements  for  331 
United  Mine  Workers  of  America 

4S9,  504,  509,  533,  757 
United  States  jurisdiction,  see  Fed- 
eral Jurisdiction 
Unnamed       jxirtics,       injunctions 

against,  see  Injunctions 
Unprotitaltle  businesses  and  wages 

888,  928,  933n 


INDEX 


1017 


Page 
Unprofital)le    departmont    of    l)usi- 
ness,    legality    of    strike    to 
compel  employer  to  continue 
an  380 

V 
Violence  181 

Unauthorized  violence  on  part  of 
union  members  237 


W 

Wages,    determination    of,    by    In- 
dustrial  Courts,   see   Living 
Wage,  Minimum  Wage 
Wages,  legality  of  strike  for  higher  264 
Wages  of  labourers,   fixing  of,  by 

justices  15, 29 

"We  don't  patronize"  lists  462 

Women  and  children,  legislation 
regulating  the  employment 
of  806,  809,  813,  813n 


Page 
Women's   wages,  determination   of 

by  Industrial  Courts  905 

See  also  Living  Wage 
Working     conditions,     legality     of 

strike  for  improved  264 

Workingmen's  budgets  Appendix 

Workmen's  Compensation  Laws       954 
Constitutionalitv  of  laws 

954,  960  n.  2 
Conclusiveness     of     findings     of 

state  commissions  960 

"In  the  course  of  the  employ- 
ment" 962 
Injury     after     completion     of 

actual  service  962,  963 

Injury  while  waiting  for  work 

966,  967 
"Arising  out  of  the  employment"  969 
Causal  connection  necessarv 

969,  972 
Injured  person's  own  condition 

a  contributing  cause  972 

Sunstroke  977, 978 

Occupational  injury  979 


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